sustained EB-2 NIW Case: Medical Research

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: ET 0 7 2005 
2 
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 1 1 53(b)(2) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
u 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont 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 is a 
postdoctoral research associate at the University of Virginia 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 quaked 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, 
I01 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 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. 2 15 (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 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 submits co ies of published articles that she wrote or co-wrote, along with six witness letters. 
Professor the petitioner's supervisor at the University of Virginia, states: 
[The petitioner] has pursued a novel investigation course of cell stress signal transduction in 
cancer cells. In a very brief time, [the petitioner] concluded that SAPK [stress-activated 
protein kinase] regulates the cdc2/cyclin B kinase activity following stress events by a novel 
mechanism involving the inhibitory phosphorylation of th,e cdc2-activating phosphatase 
CDC25c on S168. . . . 
Currently, [the petitioner] is conducting research on the protein, Pinl, that could represent a 
new anti-cancer target. She established a Pinl affinity purification system using chitin beads 
to identify novel Pin1 associated proteins. . . . She has made valuable contributions to the 
understanding of cell cycle regulation in cancer cells, specifically on the molecular 
mechanisms of gene regulation and cancer cell growth arrest. These contributions 
significantly enhance our understanding of human cancer diseases. 
Professor also of the University of Virginia, states that the petitioner "has already 
contributed to Dr. research program," but offers no details about the petitioner's work, stating 
instead that this information can be found in Prof. Templeton's letter. 
Professor Medical and Dental University states: 
[The petitioner] came to my laboratory because of her interests in the ongoing cancer 
mechanism research in my laboratory, when I was in charge of a key nationwide project . . . 
to investigate the mutation of tumor suppressor gene p130 in human oral cancer cell lines. 
She started work on a DNA sequence and SSCP and decided several mutations in tumor 
suppressor p130 which proposed a model of gene inactivation in oral tumorigenesis. . . . 
She was the first to determine the inhibition of tumor cell growth function of E2FBPllDRILl 
gene and found E2FBPI/DRILl is a target gene of tumor suppressor p53. Moreover, [the 
petitioner] demonstrated the mechanism that EZFBPIIDRILI induced G1 arrest through 
binding to p21 DNA and induction of p21 expression. . . . 
[The petitioner] is a uniquely qualified scientist in that she can apply a number of diverse 
approaches to investigate the complicated regulation of the E2FBPlIDRILI gene. . . . Her 
work will eventually lead to the identification of other genes in the same regulatory cascade 
important for understanding the mechanism of cancer development. 
, an associate professor at Tokyo Medical and Dental University, states that the work 
described above "provides evidence for a novel intermolecular mechanism of cellular response following 
DNA damage." , an assistant professor at the University of Texas M.D. Anderson Cancer 
Center, states that the petitioner "visited my lab and presented her research [in August 20001. Based on her 
achievements, I think very highly of her as an outstanding scientist." 
an assistant professor at Oregon Health & Science University, states: 
I am writing not as a personal acquaintance, but as an authority in the field of molecular 
oncology that has profound respect for [the petitioner's] works and professional abilities. . . . 
Based on a careful review of her published works, I can attest to the exceptional level of her 
abilities as a molecular cancer researcher. [The petitioner's] combined background in 
medical science, genetics and molecular cell biology gives her a real edge over other 
researchers. Her original research on cell' cycle regulation and the mechanism of 
tumorigenesis will have a major impact on our understanding of the nature and incidence of 
cancer. . . . I consider [the petitioner] to be a pioneering expert in exploring and developing 
new techniques for identifying and characterizing genes. 
The director denied the petition, acknowledging the intrinsic merit and national scope of the petitioner's 
work, but stating "there is little evidence demonstrating that the beneficiary's contributions have been 
substantially greater than any other researcher in the field with the same minimum qualification." The 
director indicated that, if the petitioner's work had been especially important or influential in the field, it 
would reasonable to expect "a much wider spectrum" of evidence to demonstrate that fact. 
On appeal, the petitioner lists her credentials and achievements, and argues that these give her "unique 
capabilities beyond any number of trained professionals in this field." She further argues that her "research 
findings impacted the cancer reseai-ch field," and discusses several of her findings and published papers. The 
petitioner submits documentation showing that one of her papers has been cited 18 times since 2001; a second 
has been cited three times since 2'003. There is no indication as to how many of these citations are self- 
citations by the petitioner and/or her co-authors. This citation record appears to be marginal, and would not, 
by itself, justify approval of the petition. We turn, therefore, to the remaining exhibits offered on appeal. 
Two new letters accompany'the appeal. h an associate professor at the Uniformed 
Services University of Health Sciences, states t at t e petitioner "has made innumerable important 
contributions to the tumor cell cycle research." 
Research Institute, editor of several journals and a member of the highly exclusive and prestigious National 
Academy of Sciences, states: 
Page 5 
Based on a review of her published research findings, I can attest to the extraordinary level of 
her abilities as a molecular biologist. Her contributions have impacted the field of molecular 
biology and are important in conquering cancer. . . . 
At the University of Virginia, [the petitioner] is conducting outstanding molecular biology 
research. . . . She addressed the potential effects of SAPK activation on cell cycle regulatory 
proteins. . . . Because cell cycle progression is central to. the growth and survival of cells, 
understanding the mechanisms of cell cycle regulators could reveal new targets for 
therapeutic interventions in disorders that involve de-regu-lation of tumor cell cycle processes. 
This independent and enthusiastic endorsement from a high-ranking researcher carries significant weight. 
Because the director never issued a request for information prior to the denial, as is generally required by 
8 C.F.R. fj 103.2(b)(8) when the record does not clearly demonstrate either eligibility or ineligibility, the 
petitioner never had the opportunity to supplement the record with this persuasive material until the appellate 
stage. 
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. 9 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.