sustained EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
i.2 5 
Office: NEBRASKA SERVICE CENTER Date: 
SRC 07 227 51427 
 MAR 8.5 2009 
IN RE: 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) 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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research assistant at Washington University School of Medicine 
(WUSM) in St. Louis, Missouri. 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 submits a brief from counsel and various exhibits, some of them previously 
submitted. 
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 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 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. 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 on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 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, whle the national interest waiver hinges 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 achevements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. 3 204.5(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 offedlabor 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. 
In an introductory statement accompanying the initial submission, counsel stated: 
[The petitioner] has made groundbreaking achievements that have significantly 
impacted the whole international medical community. [The petitioner] is a stellar 
scientist whose current research focuses on organ transplantation including lung, 
heart, liver and islet. . . . [The petitioner] has made milestone research breakthroughs 
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in the filed [sic]. His research work has been widely cited by other scientists (26 
times). . . . 
In addition, major figures in the field who are independent of [the petitioner] have all 
recognized [the petitioner's] contributions. . . . 
In view of above evidence, it is manifest that [the petitioner] is a phenomenal medical 
scientist. He has a substantial edge over his contemporaries and his research 
breakthroughs in the field have remarkably impacted the whole organ transplantation 
community, which is evidenced by the widespread implementation of his work by 
other scientists in the field around the world. 
As noted by counsel, several witness letters accompanied the petition. Several witnesses identified 
as independent have clear ties either to the petitioner or to universities where the petitioner has 
trained. of Histocompatibility and Immunogenetics 
and of the Islet Core Facility at WUSM, stated: 
[The petitioner] joined my laboratory as a postdoctoral research fellow in 1999. 
Since one of my research interests was organ transplantation, I needed a 
microsurgical scientist who was proficient in cardiovascular and hepatobiliary 
surgery in murine transplant models. The goal of these studies is to understand the 
immunobiology of organs in humans. 
. . . [The petitioner] soon became an indispensable member of our group. . . . He has 
very rare, outstanding skills in microsurgery such as heart [and] liver transplantation. 
I stated that the petitioner "has been currently playing a very 
im~ortant role in our two main research ~roiects: Liver-mediate multi-svstem iniuw and steatotic 
L d a. 
liver ischemic injury." - asserted that the petitioner is one of "only 2 - 3 fellows who 
can do this type of liver surgery [out of] 800 researchers in our Medical School." did 
not elaborate, but this ratio seems to have more to do with research specialization than with the 
petitioner's skill. 
- of Niigata University Medical School in Japan, where the petitioner earned 
his Ph.D. degree, stated: 
[The petitioner's] professional skills, broad knowledge and extraordinary abilities 
enabled him to make contributions to the field to a degree far more substantial than 
that of his peers. He has successfully completed two projects independently: 1. 
Significance of abdominal aortic aneurysm surgery in patients more than seventy 
years of age. 2. High intensity transient signals (HITS) during open-heart surgery 
[rlelationship between HITS frequency and micro-bubbles. . . . 
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Overall, [the petitioner] is an exceptionally well-trained and highly motivated 
scientist with great ability in scientific research, committed to a career in medical 
research. 
of the Transplantation Research 
Center at Brigham and Women's Hospital and Boston Children's Hospital, stated: 
I have no direct association with and have never met [the petitioner]. Through my 
professional encounter with have 
learned of [the petitioner's] extraordinary ability and outstanding skills in 
microsurgery. 
[The petitioner] is an outstanding research scientist with unusual knowledge and 
research talent in the field. He has been playing an irreplaceable and critical role in 
the ongoing projects in lab. 
National University of Singapore, stated: 
I have never worked with [the petitioner] before. My first encounter with [the 
petitioner] took place at the organ transplantation conference [at] Washington 
University School of Medicine in 2005 where [the petitioner's] presentation highly 
impressed me. . . . [The petitioner's] research achievements . . . have achieved 
international acclaim. 
I have never met [the petitioner]. However, because of our similar research interests, 
his successful research work has attracted my attention. . . . [The petitioner's] 
groundbreaking work has received considerable international attention. 
 Many 
scientists including myself have cited his articles, which undoubtedly attest to the 
international recognition of his work. 
The petitioner submitted a list of 26 articles that contained citations of the petitioner's work. 
On October 15, 2007, the director issued a request for evidence, instructing the petitioner to submit 
"objective evidence that [the petitioner's] work has had significant impact outside [his] collaborators 
and mentors," such as copies of articles by other researchers, citing the petitioner's work. 
In response, the petitioner submitted a letter from of ~anjin~ University, China, to 
The letter begins: "How are you and your family? Can't believe it 
has already been two years since last we met. I'm sorry to interrupt and ask some questions 
concerning my research works. Would you please give me advice at your convenient time?" The 
bulk of the letter concerns technical discussion of "modified isotopic mouse trachea transplantation." 
Near the end of the letter,- asked: "I am wondering if I can test the role of ventilation in 
this model? . . . Could this be adequate for demonstrating the above thought?" 
Counsel claimed that the above letter "proves that the etitioner's research has been widely 
recognized and he is considered a sought-after expert is the corresponding author 
of the work to which [the petitioner is a ma'or contributor.)" The letter shows that - was 
already a personal acquaintance of ] and - did not mention the petitioner 
at all, either in the body of the letter or in the bibliographic references that followed it. We therefore 
- - 
cannot accept counsel's conclusion that this letter "proves th; 
sought-after expert." The letter proves only that 
had known for years. I 
1t [the netitionerl . . . is considered a 
More persuasively, 
 of Vienna Medical University, Austria, 
described one of the petitioner's research papers in technical detail, and stated that the petitioner's 
"research work has received considerable ahention, having been the target of multi-citations by 
others including myself." Supporting this claim, the petitioner submitted evidence showing that the 
total number of citations of the petitioner's work, including a small number of self-citations by the 
petitioner's collaborators, had risen to 33. 
The director denied the petition on March 27, 2008. In the decision, the director listed various 
exhibits in the record, and stated: "the record indicates that petitioner's work has been cited 
relatively minimal times [sic] in scholarly works." Regarding the witness letters, the director stated 
that the witnesses "speak of [the petitioner's] work only in general terms," and "do not persuasively 
show that [the petitioner has] had an impact on the field" that would qualify the petitioner for the 
national interest waiver. 
On appeal, counsel observes that the petitioner had submitted letters from a number of prominent 
international witnesses who have not worked with the petitioner. The petitioner submitted updated 
citation printouts, showing 38 citations of the petitioner's work. This continuing and accelerating 
pattern of citation had already commenced prior to the filing of the petition. 
Upon consideration, the AAO concludes that the increasing citation of the petitioner's work, in 
conjunction with credible letters from high-ranking experts in the petitioner's field of transplantation 
medicine, establish the international reputation that the petitioner has claimed. We note the 
director's observation that some of the witness letters lack detail. At the same time, however, we 
find that the letters are not general arguments about the importance of the petitioner's specialty or 
vague attestations regarding the petitioner's promise or the quality of the laboratories where he has 
trained. 
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 recogruzes 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. 4 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.