sustained EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: DEC 2 1 '7006 
- - 
LIN 05 131 52102 
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. 8 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 fbrther inquiry must be made to that office. 
9 Robert 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 Ofice 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. 3 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a medical researcher at Washington University School of Medicine. 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 "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 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 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
Page 3 
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 qualie as "exceptional."] The 
burden will rest with the alien to establish that exemption fi-om, 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 (Comm. 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 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 hture, 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. 
Counsel describes the petitioner's work: 
[The petitioner] has been success~lly engaged in original pediatric medical imaging research 
to increase understanding [of] brain development in normal children, as well as the impact of 
disease on brain function in children. . . . 
Through his research, [the petitioner] has made valuable contributions to the understanding of 
the impact of the brain function in children suffering from sickle cell anemia and 
phenylketonuria of those diseases [sic]. He is also a critical participant in The MRI Study of 
Normal Brain Development. . . . [The petitioner's] development of new pediatric medical 
imaging techniques has allowed this project to move toward achievement of its goals much 
more effectively than was thought possible when it began. No one else in the country or 
world has had the level of success that he has attained. 
The petitioner's initial submission consists almost entirelv of witne 
Washington University faculty members. For examp18 
Washington University School of Medicine, states: 
I chair the steering committee of The MRI Study Of Normal Brain Development conducted 
by the Brain Development Cooperative Group. To our knowledge, this is the most 
comprehensive and rigorous MRI study of pediatric brain and behavioral development ever 
conducted. . . . 
Page 4 
[The petitioner] has been working on the Brain Development project since early 2002. I 
hired him to run the pediatric imaging aspects of the Brain Development project because of 
his unique expertise in the scanning of young children without sedation. . . . [The petitioner] 
has been instrumental in assuring the success of the project. Clearly, the work he is doing is 
in the national interest of the United States, as we seek to establish normative data for the 
brain development and maturation of a sample of children representative of the US 
population. This database will serve as the standard for normal brain development by which 
investigators and clinicians can assess a child's brain development. Currently, there is no 
such standard which pediatric clinicians can use as a starting point for diagnosis and 
treatment of abnormal brain development. . . . 
[The petitioner's] expertise scanning children without sedation, more than any other factor, 
has assured the success of the project. There is no one else in the world with a track record of 
success in scanning young children without sedation like his. . . . 
Without him, we will not be able to achieve the stated goals of The MRI Study of Normal 
Brain Development. 
- , an Associate Professor at Harvard University, identifies himself as "a co-investigator for 
an ongoing clinical trial, 'The MRI Study of Normal Brain Development."' He states that the petitioner's 
"participation is critical to this ongoing clinical trial. He is the anchor person at Washington University 
Objective-2 imaging center. . . . His success rate in the acquisition of imaging non-sedated kids is far greater 
than any other person, nationally as well as internationally." 
[The petitioner] and I know one another through our co-investigations with the Silent Infarct 
Infusion Trial, a study being conducted in four countries to examine the utility of transfusion 
therapy in preventing strokes and cognitive decline in children with sickle cell disease. I 
oversee the data collection taking place at hospitals in Great Britain. . . . 
Particularly impressive is his development of techniques to obtain neuroimaging data from 
young children and babies without the need to sedate them. Avoiding sedation for these 
types of procedures is a major medical advance that is unique to [the petitioner]. 
Several others who have collaborated with the petitioner, at Washington University and elsewhere, assert that 
the petitioner's participation - specifically, his ability to scan young children without sedation - is essential to 
the project described above and to other studies that require brain scan imaging. All of the witnesses have 
collaborated with the petitioner to some extent. 
On June 24, 2005, the director issued a request for evidence (RFE), instructing the petitioner to submit 
additional documentation to meet the guidelines set forth in Matter of New York State Dept. of 
Transportation. The director specifically requested "evidence, from individuals outside [the petitioner's] 
prior and immediate circle of colleagues and acquaintances," as well as documentation to establish that the 
petitioner's work has had an especially significant impact on his field. The RFE contained no specific 
discussion of the petitioner's claims or evidence, instead setting forth various general requirements. 
In response, counsel cites a memorandum from William R. Yates, Associate Director of Operations, Requests 
,for Evidence (RFE) and Notice oflntent to Deny (NOID) (February 16,2005), highlighting this passage: 
"Broad brush" RFEs tend to generate "broad brush" responses. . . . While it is sensible to use 
well articulated templates that set out an array of common components of RFEs for a 
particular case type, it is not normally appropriate to "dump" the entire template in a WE; 
instead, the record must be examined for what is missing, and a limited, specific RFE should 
be sent, using the relevant portion from the template. The RFE should set forth what is 
required in a comprehensible manner so that the filer is sufficiently informed of what is 
required. 
Counsel states: "the RFE failed to specifically address the evidence which was initially submitted with the 
Petition." Counsel quotes from several of the previously submitted letters, and asserts that the witnesses 
"have already identified [the petitioner] as possessing unique abilities that enable him to contribute to such 
research in a manner far superior to that of others in the field." Counsel Wher contends that labor 
certification is not a realistic option because the petitioner himself "developed the techniques that are critical 
to this research," a claim for which counsel cites no specific source. 
The director denied the petition on December 6, 2005. The director acknowledged the intrinsic merit and 
national scope of the petitioner's occupation, but found that the petitioner failed to "establish that he will 
serve the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications." 
On appeal, counsel asserts that the director's decision "fails to give proper weight and understanding to the 
support statements of experts who have worked with" the petitioner. Counsel also observes that a witness 
letter is not discredited simply because the witness has collaborated with the petitioner. 
There are times when a petition relies largely or entirely on witness letters from collaborators because the 
alien's work has received so little recognition, and had so little impact, that the alien's own collaborators are 
the only ones with any detailed knowledge of the alien's work. There are, however, other occasions when an 
alien has worked with a broad array of collaborators for the very reason that his skills and abilities place the 
alien in demand in major projects. The latter seems to be the case here. While many of the witnesses are at 
Washington University, the record does not indicate that the petitioner's reputation is wholly or largely 
confined to Washington University. Rather, witnesses from throughout the United States, and even one 
witness from as far away as London, all attest that the petitioner has not merely learned difficult skills, but 
that he himself has developed critical techniques upon which rest the success of a major research initiative 
involving universities and research facilities around the United States. The available evidence supports the 
Page 6 
conclusion that, beyond simply being a highly trained worker in his field, the petitioner is an innovative and 
influential researcher who has affected the course of continuing research in his area of expertise and related fields. 
We concur with counsel that the director's RFE was so broad that it afforded the petitioner little guidance as to 
how to prepare a constructive response. The denial notice was less generic, but still it contained minimal 
discussion of the details of the petitioner's work, resting largely on what appears to be "stock" language. The 
denial, as a result, amounted in large part to a series of conclusions with few supporting premises. 
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 medical research community recognizes the significance of this 
petitioner's work rather than simply the specialty in general. 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 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.