sustained EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
I\ V 
FILE: ' Office: NEBWSKA SERVICE CENTER Date: 
LIN 04 057 52275 
 AUG 1 1 2006 
IN RE: Petitioner: 
Beneficiary: 
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. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have bekn returned to 
the office that originally decided yo& case. Any firther inquiry must be made to that office. 
U@u 
Lobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be sustained and the 
petition will be approved. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research assistant scientist at the University of Minnesota. 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 of the United States. 
Section 203(b) of the Act states in pertinent part that: 
(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 of Job 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 director did not dispute that the petitioner qualifies as a member of the professions holding an advanced 
degree. 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 "inithe national interest." The Committee on the 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, 
1 Olst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the wgration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services] 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 "exceptional."] 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 OII its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornm. 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. 
It must be noted that, while the national interest waiver h%ges on prospective national benefit, it clearly must be 
established 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 describes his work and explains why he believes he qualifies for a waiver: 
Currently, I am employed as a Research Assistant Scientist in the Cancer CenterIDepartment 
of Orthopedic Surgery at the University of Minnesota. My current research projects have 
been focusing on the molecular mechanisms regulating the ability of Runx2 to regulate the 
expression of genes required for tumor development and bone cell differentiation. 
Specifically, I am concentrating my research efforts on chromatin remodeling enzymes that 
may be recruited by Rum2 to osteoblast-specific promoters, the defects of which are directly 
linked to genetic and degenerative skeletal diseases and bone tumor formation. In addition, I 
am currently working on FHODl, which is a protein responsible for regulating cytoskeletal 
organization, cell motility, and gene transcription. In this cutting-edge research, I am aiming 
at determining the mechanisms by which FHODl enhances cell motility and relates to 
various signaling pathways. . . . [M]y pivotal work is laying the groundwork to improve the 
treatment of bone diseases, bone and lung cancer, and leukemia at the molecular level. . . . 
It would be contrary to the national interest to deprive the prospective employer of my 
services by making available to minimally qualified workers U.S. workers the position that I 
seek. I am far better qualified than a minimally qualified U.S. worker to perform this work 
because I am uniquely experienced in . . . elucidating the mechanisms regulating the ability of 
Runx2 to regulate the expression of genes required for tumor development and bone cell 
differentiation, as well 'as the mechanisms of FHODl . . . in cellular and developmental 
processes. 
The petitioner asserts that his work "will lead to the development of novel drugs for cancer treatment" and 
"could lead to therapy that can ease or cure the patient's suffering from osteoporosis or bone metastasis of 
cancer." 
The petitioner submits copies of his published articles and letters from several witnesses. Some of these 
witnesses either work in areas outside the petitioner's specialty (for instance, one witness is an 
anesthesiologist) or else they do not identify their own specialty or area of expertise at all, and they do not 
explain how they came to know of the petitioner's work. This information is relevant because it speaks to the 
nature and extent of the petitioner's reputation in the field. 
Other letters however come from witnesses with significant credentials in the petitioner's field. For 
instanc 
 irector of Systems Biology, Cancer Research and Enabling Biology, at - 
b 
an states: 
My research focus in. the last 10 years has been directed at identifying new agents, 
approaches, and therapies for the treatment of osteoporosis and other debilitating bone 
diseases such as metastatic bone disease. . . . It is related to this area that I know the work of 
[the petitioner] whose work has made major contributions to the field of bone biology. My 
knowledge of [the petitioner's] work has been gained through review of his published work. I 
do not personally know or have a relationship with him. ~enie my opinion is an objective 
assessment of his contributions and based on my expertise in this field of study. . . . 
In my opinion, [the petitioner's] work is outstanding and I have no doubt that his future work 
will continue to improve our understanding of Runx2, the key regulator of bone 
differentiation. To date, his work has made important insights into the development of 
potential targets for therapeutic interventions to treat osteoporosis, bone metastasis of cancer 
and other bone diseases. 
f the University of Oxford states: (Emphasis in original.) Professor 
My research interests include clinical molecular genetics of skill and limb malformations and 
through this I have been aware of [the petitioner's] important work on the biology of Runx2. 
[The petitioner] has been doing outstanding research on the transcriptional regulation of 
Rum2 and FHODl since 2000. He is the fust scientist in the world to purify and produce a 
portion of FHODl that was used as an antigen to make polyclonal antibodies. [The 
petitioner] is also the first to study the relationship between Rum2 and the chromatin 
modifier, HDAC6. These findings not only provide insights into the functions of Runx2, but 
also demonstrate the interaction between Runx2 and HDAC6. This interaction is important 
for regulating the expression of developing siRNA techniques on Runx2 and Cbfp. This 
invention is so conceptually new in the field of Runx2 and Cbfp, providing an economic and 
efficient way to suppress the expression of these two genes for the fust time. It is foreseeable 
that this invention will open a new research direction for studying Runx2 and Cbfp. 
Collectively, [the petitioner's] research findings have been significant contributions of 
relevance to bone formation and cancer metastasis. . . . 
[The petitioner's] invention enables enormous acceleration of research progress (weeks rather 
than years). This speeds up long term research 
 to prevent and cure bone tumours. . . . 
His work in the United States has led to an important publication in Molecular and Cellular 
Biology. . . . Considering [the petitioner's] work to date and his wide expertise . . . it would 
understandably be extremely difficult, if not impossible, to replace him in the ongoing Rum2 
and FHODl research. 
enior group leader at the Friedrich Miescher Institute for Biomedical Research, Basel, 
the petitioner's work and states that the petitioner's "research findings have been great 
contributions to the area of bone formation and cancer metastasis which could benefit millions of people 
worldwide." 
Without first issuing a request for evidence, the director denied the petition, stating that while "testimonials 
from distinguished professionals" show that "the petitioner offers a notable benefit to his field of endeavor," 
nevertheless "[tlhe documents of record do not adequately establish a sustained pattern of achievement at this 
point in the petitioner's career" that would merit a waiver. The director did not explain how the "testimonials 
from distinguished professionals" were-deficient in this respect, given that the witness letters contained 
detailed descriptions of the petitioner's contributions and their significance. 
The director observed that "the petitioner's level of accomplishment" does not appear to compare favorably to 
that of several witnesses. It is true that several witnesses appear to be highly distinguished in the field, but 
this is not necdssarily a liability. If the petitioner were seeking classification as an alien of extraordinary 
ability under section 203(b)(l)(A) of the Act, which requires a showing that he is at the very top of his field, 
then it would certainly be to his detriment that the witnesses' achievements so overshadow his own. Here, 
however, the petitioner need not establish that he is one of the top researchers in his field; he need only show 
that he stands out in the field to a sufficient extent to justify the conclusion that a waiver of the job offer 
requirement would be in the national interest. In such a circumstance, recommendations from very highly 
placed witnesses do not diminish the petitioner's own standing in the field; rather, they demonstrate that the 
petitioner's work has commanded the attention of high-ranking, respected figures in that field. 
The director stated that "thousands of petitions filed each year requesting a waiver . . . are accompanied by 
evidence of the petitioner's or the beneficiary's published and cited novel and/or groundbreaking research and 
 - 
letters describing the vital importance of his or her work" (director's emphasis). While the director's reliance 
here on observations fiom other records of proceeding is troubling, we sympathize with the director's 
observation. In academia, the familiar phrase "publish or perish" demonstrates that publication of one's work 
is closer to a requirement than to a rare accolade. The existence of published work is far less persuasive than 
the impact of that work. The director referred to citation as a gauge of the impact of published work, but 
because the director had not issued a request for evidence prior to denying the petition, the petitioner had not 
- Page 6 
had an opportunity to supplement the record with evidence of such citation. The director's mention of 
citation in the denial notice itself was rather oblique, su'ch that the petitioner still may not have had a clear 
idea of how important such evidence can be. 
On appeal, the petitioner asserts that the director did not give sufficient weight to the witness letters submitted 
in support of the petition. We have already discussed examples of these letters, above. While the petitioner 
may not have offered evidence regarding citation of his published work, the letters demonstrate that the 
petitioner's work has garnered international attention (and not merely in the trivial sense that the petitioner's 
former classmates and co-workers have dispersed to different countries). 
Other arguments by the petitioner are less persuasive. For example, the assertion that his work has produced 
"two NIH R01 grants, and one patent pending" does not give a clear idea of the importance of his work. 
Grant funding appears to be a common source of support for scientific research, and the petitioner has not 
shown that the NIH grants he received enjoy rare prestige in the field, or that to obtain such a grant involves 
substantially more than a persuasive grant proposal. Published precedent specifically addresses the patent 
issue. Simply holding a patent is not prima facie evidence of eligibility for the waiver; the petitioner must 
establish the particular significance of the patented invention or innovation. See Matter of New York State 
Dept. of Transportation at 221, n.7. That being said, the petitioner's weaker arguments on appeal do not 
undermine or cancel out the stronger evidence that tends to support approval of the petition. 
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. 5 1361. 
The petitioner has sustained that burden. Accordingly, the decision of the director denying the petition will be 
withdrawn and the petition will be approved. 
ORDER: 
 The appeal is sustained and the petition is approved. 
I