sustained EB-2 NIW Case: Medical Research

(b)(6)
DATE: MAY 3 0 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland 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 
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, 
hon Rosenbe 
Acting Chief, Administrative Appeals 
Office 
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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 Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time she filed the petition, the petitioner was a psychiatrv resident at 
Washington, D.C., and a post-doctoral research fellow at affiliated with 
New York, New York. She indicated on the Form I-140 petition that she seeks 
employment as an "Internal Medicine Resident" at 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. 
On appeal, the petitioner a brief from counsel and supporting materials. 
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 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 cetiification, 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 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration 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 "excf:ptional."] 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. 
In reNew York State Dept. of Transportation (NYSDOT), 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, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. 
Next, the petitioner must show that the proposed benefit will be national in scope. Finally, the 
petitioner 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 regulation at 8 C.P.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. 
The petitioner filed the Form I-140 petition on Mav 25. 2012. The oetition included several witness 
letters. The most detailed letter is from Professor 
who stated: 
At present, [the petitioner] is one of the experts on the intersection of appetite-related 
hormones, neuroimaging, and bariatric surgery .... Her specific focus in studies is on 
key appetite-related hormones and how the brain's processing of these hormones 
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Dr. 
change for patients undergoing bariatric surgery. She is seeking to identify the neural 
activity related to energy balance regulation, hunger, satiety, food craving, reward 
and other aspects of eating, as well as other brain-influenced factors related to food 
intake and weight loss/weight control. 
Ultimately, she is seeking to elucidate the neural - that is, brain pathway -
mechanism of sustained weight loss and improved metabolism after various bariatric 
surgical procedures. By studying postsurgical changes in brain function and 
processing of gut hormone levels, she is seeking to better understand the mechanisms 
of brain function following surgically-induced weight loss .... 
We have data suggesting that the characteristics of gut peptide production change 
following bariatric surgery, and we are now trying to investigate how the brain 
processes these changes. While at present, her studies relate solely to patients who 
have decided to undergo bariatric surgery, the more far-reaching benefit would be if 
we could replicate this mechanism through nonsurgical means, as that would provide 
a much more desirable, promising, and cost-effective means to address and treat the 
problem of obesity .... 
[The petitioner] is engaged in extensive efforts to Image the brain[s] of obese 
individuals both before and after bariatric surgery .... 
First, in the inception phase of this study, she was the Project Manager. She was 
responsible for the training and recruitment of research staff, the enrollment of 
patients into the study, data analysis, project design, and the evaluation of the project 
goals .... Second, now that this project is firmly underway, she serves [as] a Co­
Investigator with lead responsib[ility] for the ongoing design of the various 
experiments and development of methodology, the neuroimaging procedures and 
analysis, and the publication of manuscripts. 
associate professor at and director of its Weight Control 
Center, stated: 
I worked closely with [the petitioner] on a collaborative project that spanned over a 
year. Together, we analysed and interpreted data from a pilot study examining the 
efficacy of cabergoline, a dopamine receptor agonist and dietary modification, on 
body weight and glucose tolerance in obese non-diabetic persons without 
hyperprolactinema. She provided significant intellectual contributions to the 
proposed work and played a critical role in the writing up of this original research 
project. ... 
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She has made other multiple contributions of great significance to obesity and 
diabetes research. Numerous other researchers in the field have cited her publications 
on neuroimaging and obesity .... 
[The petitioner's] research is incredibly fundamental and offers hope towards 
developing anti-obesity therapies. Her research displays a rare brilliance and 
dedication, and I believe that she will continue to make a significant impact on the 
health of obese and diabetic patients in the US. 
To support Dr. assertion that "[n]umerous other researchers in the field have cited her 
publications on neuroimaging and obesity," the petitioner submitted evidence of moderate 
independent citation of three of her articles. 
Professor London, United Kingdom, stated: 
I have known [the petitioner] since 2005, when she began to work in my lab at the 
end ofher first year of medical training .... 
[The petitioner] has made very important original research contributions to our 
understanding of obesity .... [E]xamining the neurotransmitters involved in appetite 
and food intake, such as dopamine, may also lay the groundwork for effective weight 
loss treatments and help translate knowledge to clinical practice. 
Among the many investigators that I have had the opportunity to meet and to observe 
in over 40 years in biomedical research, [the petitioner] clearly stands out as being 
one of those at the very top of her field, 
. the Dr. a manager-scientist at 
------------------------------------~ Netherlands, stated: 
I collaborated with Dr and had the distinct pleasure of working with [the 
petitioner] on an industry-funded project. The objective was to assess objective 
measures of gastric volume/distension with CT scan technology alongside subjective 
appetite ratings pre and post consumption of a Slim Fast meal replacement shake .... 
[The petitioner's] outstanding efforts and expertise led to the acquisition of 
significant findings that assisted in the development of successful weight loss 
therapies. 
Professor and past president of the 
stated: "I have paid great attention to her 
research comparing Body Adiposity Index (BAI) and Body Mass Index (BMI), as she has been 
among the first to compare BAI with BMI and their correlations with measures of body fat, waist 
circumference (WC), and indirect indices of fat (leptin, insulin) pre- and post-Roux-en-Y Gastric 
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Bypass (RYGB)." Prof. 
work." 
deemed the petitioner's current research to be "highly important 
Numerous witnesses have encountered the petitioner at various orofessional conferences. For 
executive director of 
. Baton Rouge, and a ast resident of the 
is "impressed with [the 
petitioner's] contributions to the field and outstanding research activities as they relate to appetite 
control and changes in body composition pre and post bariatric surgery." 
As another example, Dr. senior clinician scientist at stated that 
the petitioner's "work has certainly had a distinctive impact on our field .... She has proven herself 
to be a scholar and a researcher of exceptional skill and insight." 
In a request for evidence issued on August 29, 2012, the director acknowledged the witness letters 
and evidence that accompanied the petition. The director instructedthe petitioner to submit further 
evidence to establish her influence on the field. Among examples of acceptable evidence, the 
director stated that the petitioner could submit "[ e ]vidence demonstrating that her developments are 
being applied in the field" or evidence that her rate of citations "is above average for her field." 
In response, the petitioner submitted a second letter from Prof. who stated: "for the type of 
federally funded high-level research of national significance that we are conducting, hiring a 
minimally qualified applicant would not be appropriate or consistent with our existing hiring 
patterns." No statute, regulation, or case law supports the assertion that, because a research 
institution receives federal funding, its "existing hiring patterns" supersede the statutory job offer 
requirement. Under NYSDOT, eligibility for the waiver is "specific to the alien" (id. at 217); there 
are no institutional blanket waivers, and no institution can declare itself exempt from the relevant 
statutory provisions. 
Similarly, there is no precedent for the assertion that federal grant money establishes that 
participants in funded projects presumptively qualify for the national interest waiver. Medical 
researchers are members of the professions, and therefore subject to the job offer requirement. The 
petitioner submitted no information from the NIH to establish that provision of grant funding is a 
rare event that warrants special consideration, rather than a 
core or routine function of the NIH. 
The director denied the petition on November 1, 2012. The director quoted several witness letters, 
described other exhibits, and acknowledged that the petitioner had published her work in journals 
and presented it at conferences. The director found that the petitioner had not submitted objective 
evidence to distinguish her research from that of other qualified researchers in the field. 
On appeal, the petitioner documents dozens of further citations of her work, showing that the total 
number had more than tripled since the initial filing date. Owing to the length of time involved in 
preparing, submitting, reviewing, and publishing articles, the researchers making these citations 
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were already relying on the petitioner's work at the time she filed the petition. The substantial and 
accelerating citation rate of the petitioner's published work corroborates the witnesses' claims of 
widespread reliance on the petitioner's work. The evidence submitted on appeal continues a pattern 
already established in prior submissions. 
Eligibility for the national interest waiver does not rest on the overall importance of a given field of 
endeavor, or on the prestige of a particular employer. It rests, instead, on the merits of the individual 
alien. In this instance, the evidence in the record establishes the widespread and expanding influence of 
the petitioner's research work. The benefit of retaining the petitioner's services outweighs the national 
interest that is inherent in the labor certifica1:i.on 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.