sustained EB-2 NIW Case: Medical Research

~ .. \ 
icent?fving data deleted to 
preveni clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: MAY 22 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department ofIlomeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
~"­
~iryRhe~J 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
sustain the appeal and approve the petition. 
The petitioner seeks classification pursuant to section 203(b)(2) of the hnmigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as an alien of exceptional ability in the sciences. At the time he filed 
the . the petitioner was a •••••••••••••••••••• 
The petitioner asserts that an exemption from the requirement of a job offer, and 
thus of a labor certification, is in the national interest of the United States. The director found that the 
petitioner qualifies for classification as a member of the professions holding an advanced degree but 
that the petitioner had not established that an exemption from the requirement of a job offer would be in 
the national interest ofthe United States. 
On appeal, the petitioner submits a brief from counsel and supporting exhibits. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B)Waiver ofJob Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an 
alien's services in the sciences, arts, professions, or business be sought by an 
employer in the United States. 
The petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
record readily establishes that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds post-baccalaureate degrees, qualifies as a member of the professions holding an advanced 
degree. An additional determination regarding the petitioner's claim of exceptional ability would be 
moot. The sole issue in contention is whether the petitioner has established that a waiver of the job 
offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
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Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the hnmigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and hnmigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" [required 
of aliens seeking to qualify as "exceptiona1."] The burden will rest with the alien to 
establish that exemption from, or waiver of, the job offer will be in the national interest. 
Each case is to be judged on its own merits. 
Matter a/New York State Dept. a/Transportation (NYSD01), 22 I&N Dec. 215 (Comm'r 1998), has 
set forth several factors which must be considered when evaluating a request for a national interest 
waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. 
Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner 
seeking the waiver must establish that the alien will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require 
future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The petitioner filed the Form 1-140 petition on June 10,2010. In an introductory statement, counsel 
asserts that the petitioner would qualify for classification as an alien of extraordinary ability in the 
sciences under section 203(b)(l)(A) of the Act, and therefore should also readily qualify for the 
national interest waiver with its lesser evidentiary demands. The AAO will give submitted evidence 
due consideration, but will not, in this proceeding, attempt to determine whether or not the petitioner 
qualifies for classification as an alien of extraordinary ability in the sciences. 1 
Counsel cited Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), in which the court ruled that 
"neither USCIS nor [the] AAO may unilaterally impose novel substantive or evidentiary 
requirements beyond those set forth at 8 C.F.R. § 204.5." Id. at 1121. The Kazarian decision 
involved a petition for an alien of extraordinary ability under section 203(b )(1 )(A) of the Act. The 
I The AAO notes that, simultaneously with the petition under discussion, the petitioner also filed a second petition 
seeking classification as an alien of extraordinary ability in the sciences. The director denied that petition. Counsel 
appealed that decision on the petitioner's behalf, but later withdrew the appeal. 
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implementing regulations for that classification include, at 8 C.F.R. § 204.5(h)(3), a list of ten 
evidentiary criteria. A petitioner seeking that classification must meet at least three of those ten 
criteria. The court, in Kazarian, held that USCIS adjudicators could not modify those requirements. 
In this proceeding, under different sections of the statute and regulations, there is no comparable list 
of qualifications. The regulation at 8 C.F.R. § 204.5(k)(4)(ii) provides for the national interest 
waiver, but is entirely silent as to the requirements for it. In the absence of statutory and regulatory 
guidance (with the exception of provisions for certain physicians, not applicable here), the only 
binding law pertaining to the national interest waiver is NYSDOT. 
Counsel also claims: "The standard for NIW is 'exceptional ability.' ... a review of this evidence 
can only lead to the conclusion that [the petitioner] is a research scientist of exceptional ability 
doing work in the national interest" (counsel's emphasis). The USCIS regulation at 8 C.F.R. 
§ 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarily encountered" in a given area of endeavor. By statute, aliens of exceptional ability are 
generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given alien seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot 
qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily 
encountered in his or her field of expertise. Exceptional ability creates no presumption of eligibility 
for the national interest waiver. It is, rather, a means by which one may qualify to apply for the 
waiver. Furthermore, the question of whether the petitioner's "work [is] in the national interest" is 
not identical to the question of whether the petitioner, as an individual, merits the national interest 
waiver. The basic nature of the work may have intrinsic merit and national scope, but the same 
would be true for any qualified worker pursuing such research. 
Counsel offered some details regarding the petitioner's research work: 
For 13 years, [the petitioner] has been continuously studying stroke, exploring stroke 
mechanisms, and investigating the appropriate neuroprotectants both clinically and 
experimentally. He was the first person in the world to put forward the important 
concept that modeling stroke should be performed in aging animals instead of young 
rodents because a large plurality of stroke victims are elderly .... 
[The petitioner] was also the first person who successfully provided a middle cerebral 
artery occlusion (MCAO) model with aged mice. By doing stroke model in aged 
animals, [the petitioner] discovered that stroke outcomes are different between aging 
male and female mice .... The sexual dimorphism in stroke [the petitioner] and his 
colleagues found has greatly contributed to the integrity of our knowledge of 
mechanisms underlying ischemic stroke, and [the petitioner] is undoubtedly the 
world's greatest contributor to this theory .... 
The work that [the petitioner] has done has already earned him an international 
reputation in the field of stroke research. Without any doubt, he is one of the top 
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experts in this field, and perhaps the top expert on the subject of gender differences in 
stroke and stroke outcomes. 
To support the petition, the petitioner submitted letters bearing the electronically reproduced 
signatures of witnesses whom counsel deemed "some of the world's top research experts" 
pet! WI 
important findings, e.g. sex and age related differences stroke outcomes in young and aging 
mice." One such finding, "that caspase dependent cell death predominates in female animals after 
ischemic injury ... [,] has direct relevance for the development ofneuroprotective therapies." 
Professor who is also 
chair of the American Stroke Association International Stroke Conference, found that the 
petitioner's findings "may have important therapeutic relevance" and "will undoubtedly greatly 
benefit health care in our country." 
stated that the petitioner's "findings have profound implications 
as certam neuroprotective agents may only work in young male brain, and have 
no effect in the population most at risk for stroke, aging females. This is a revolutionary approach 
that is very likely to lead to important results that will move the field forward." 
stated that the petitioner's "findings ... have great significance to experimental stroke researchers, 
and the field in general as most experimental stroke studies have been performed exclusively in 
young male animals." 
Regarding the petitioner's published work, counsel stated that the petitioner "is an extremely well­
published author with 21 journal articles, including six abstracts. He has at least 102 citations. His 
most important articles were published in October of 2009 and April of 2010, and these articles 
already have at least 19 citations. This is phenomenal for recently published articles." 
The record at the time of filing did not support the exact figures provided by counsel, particularly with 
respect to the petitioner's more recent publications, but the petitioner did document a substantial 
number of citations, particularly of his holder articles (as would be expected). The petitioner's earliest 
articles were published in Chinese, as were the citing articles. 
On January 12, 2011, the director issued a request for evidence, instructing the petitioner to submit 
additional evidence of the petitioner's influence in his field, including translations of the Chinese­
language citation data. The director did not specify that, under the uscrs regulation at 8 C.F.R. § 
103.2(b)(3), the translation must include the translator's certification that the translation is complete and 
that the translator is competent to translate from the foreign language into English. 
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In response, the petitioner submitted updated citation figures including electronically generated English 
translations from the Google Scholar search engine (http://scholar.google.com). 
The petitioner submitted with further letters from recent collaborators, 
such as who stated: 
[The petitioner] is one of the top scientists in the world on stroke. He has excellent 
studies on ischemic stroke and recently my lab has initiated a very fruitful 
collaboration with him .... In fact, my lab is making significant progress on MCAo 
[sic] suture stroke studies because of the training and expertise provided by [the 
petitioner] . 
The director denied the petition on June 16,2011. The director quoted from the witness letters, and 
noted that the letters submitted in response to the request for evidence refer to work that the 
petitioner performed after the petition's filing date, which cannot retroactively establish eligibility as 
of the filing date. The director cited Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The director acknowledged the petitioner's submission of citation data. The director stated that 
attempts to verify the English translations of the Chinese citations were unsuccessful. (One such 
translation identified the principal author of an article as "Tiger Reserve Photo.") The director 
concluded that the petitioner's "published work has been moderately cited." 
agmg 
technique." 
asserts that the petitioner "developed the method to perform MCAO in 
and finally developed the protocol, which is his own original idea and 
also called attention to the increasing citation of the petitioner's work. 
Counsel contends that Katigbak should not strictly apply in proceedings that take "months or years" 
to complete, but cites no statute, regulation or case law to support this position. In this proceeding, 
even disregarding the most recent witness letters, the petitioner's earlier evidence is still consistent 
with approval of the petition. 
Counsel acknowledges error with respect to the ''wrongly translated" Chinese citation data, and the 
petitioner submits new, certified translations of the citation data. With respect to the petitioner's 
lications, the petitioner submits updated citation figures, along with tables 
showing the citation rates of papers in 
the field of neuroscience. Counsel observes that the petitioner's recent papers show citation rates 
several times greater than the documented averages. These figures are consistent over several 
papers, rather than applying only to one or two "fluke" papers with high citation rates that raise the 
average rate for otherwise undistinguished papers. Counsel strongly disputes the director's 
characterization of the petitioner's citation record as "moderate." 
New printouts from citation databases show counsel's figures to be somewhat exaggerated, with one 
citation double-counted, as well as eleven self-citations by the petitioner's co-authors, but the 
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remaining citations are sufficient to support counsel's assertion that the petitioner's work is heavily 
cited. These citations continue a pattern of heavy citation already in place at the time of filing, 
particularly (at first) with regard to the petitioner's Chinese-language articles. 
The record also preponderantly credits the petitioner with innovation of laboratory techniques that 
other laboratories have adopted, and which have significantly affected the course of ongoing 
research. In this way, the petitioner has demonstrated the wider influence contemplated in NYSDOT. 
It does not appear to have been the intent of Congress to grant national interest waivers on the basis of 
the overall importance of a given field of research, rather than on the merits of the individual alien. 
That being said, the evidence in the record establishes that the scientific community recognizes the 
significance of this petitioner's research rather than simply the general area of research. The benefit of 
retaining this alien's services outweighs the national interest that is inherent in the labor certification 
process. Therefore, on the basis of the evidence submitted, the petitioner has established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has sustained that burden. Accordingly, the AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.