sustained EB-2 NIW Case: Medical Research

identifying data d8¥etedto
prevent clearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., fun. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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FILE:
SRC 05 19852026
Office: TEXAS SERVICE CENTER Date: ttAR 0GZ007
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.§ 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe 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 ..
.. ~~
YRobert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2 "
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa
petition, which 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) ofthe Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner initially sought employment as a research associate and is
now working as a senior scientist. The petitioner asserts that an exemption from the requirement of a
job offer, and thus of an alien employment certification, is in the national interest of the United States.
The director found that the petitioner qualifies for the classification sought 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, counsel submits a brief and additional evidence. For the reasons discussed below, while the
record before the director was not particularly persuasive, the evidence submitted on appeal, relating to
the petitioner's accomplishments prior to the filing of the petition, overcomes the director's valid
concerns-,
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 A1?ility.--
(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 requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
It appears from the record thatthe petitioner seeks classification as an alien of exceptional ability and as
an advanced degree professional. The petitioner holds a Ph.D. from the Mie University School of
Medicine. The petitioner's occupation falls within the pertinent regulatory definition of a profession.
The petitioner thus' qualifies as a member of the professions holding an advanced degree. Thus,
whether the petitioner may also qualify as an alien of exceptional ability is moot. The remaining issue
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is whether the petitione~ has established that a waiver of the job offer requirement, and thus an alien
employment certification, is in the national interest.
Neither the statute nor 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, 101st Cong., l stSess., 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:, '
The Service 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 Dep tof Transp., 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 future, serve the national
interest cannot suffice to establish prospective national benefit. The inclusion ofthe 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. '
We concur with the director that the petitioner works in an area of intrinsic merit, medical research,
'. and that the proposed benefits of his work, improved treatment of heart failure, would be national in
scope. It remains, then, to determine whether the petitioner will benefit the national interest to a
greater extent than an available U.S. worker with the same minimum qualifications.
Initially, counsel relies on a nonprecedent decision from this office for the propositionthat a petitioner
need only demonstrate that the alien's contributions "have been especially valuable." Unlike precedent
decisions, nonprecedent decisions are not binding and are not written with the intention of articulating
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binding standards. 8 C .F.R. § 103.3(c). Far more useful is the language in Matter ofNew York State
Dep't ofTransp., 22 I&N Dec. at 215.
Eligibility for the waiver must rest with the alien 's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
. petitioner merits the special benefit of a national interest waiver , over and above the visa
classification she seeks . By seeking an extra benefit , the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole . Id. at 219, n. 6 . In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent. .is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. /d. at 221, n. 7.
The petitioner received his medical degree from China Medical University in 1992 and subsequently
worked as a resident in China through 1994 . The petitioner then began his graduate studies at the
Mie University School of Medicine in Japan, where he received his Ph.D . in 2000. The petitioner
then accepted a postdoctoral research associate position at the University of Louisville. .Around the
date of filing, the petitioner began working as a senior scientist at Novartis Institutes forBioMedical
Research (Novartis). The petitioner must establish his eligibility as of the date of filing. See
8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). As most, if
not all, of the petitioner's work for Novartis postdates the filing of the appeal, we cannot consider
that work in this matter . Moreover, any assertions that the petitioner is vital to projects at the
University of Louisville are no longer valid as the petitioner has left his position at that institution.
Nevertheless, we will consider whether the petitioner has such a track record of success with a
. degree of influence on the field as a whole that the national benefit of his employment at Novartis is
more than mere speculation.
Dr. _ an Emeritus Professor at the Mie University School of Medicine, discusses the
petitioner's development ofa rat model for lung transplants. Dr . ~xplains that the success of
lung transplants is "limited by the high incidence of acute and chronic graft rejection." Dr._
asserts that lung transplantation in a rat in volves technically difficult microsurgery , but also states
that it is a "well-known experimental procedure to investigate this disease ." According to Dr. ~
the petitioner's model involved a short operation time, yielding a decline on postoperative
complications and mortality. Finally, Dr. asserts that the petitioner 's mix of skills and
knowledge are rare; Dr. _ has been forced to terminate projects because has been unable to
replace the petitioner.
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While at the University of Louisville, the petitioner worked in the laboratory of Dr.
n Dr. discusses five contributions by the petitioner in addition to the work discussed
by Dr. _ First, the petitioner developed mouse models of human heart failure: ischemic heart
failure after myocardial infarction and pressure-overloaded left ventricular hypertrophy. The
petitioner also developed neurohormonal models of left ventricular hypertrophy. Dr. I asserts
that these models have formed the bases of grants obtained by Dr. _laboratory.
Second, the petitioner "refined important techniques" for the evaluation of cardiac function in mice
and rats after genetic manipulations. Such evaluation is complicated by the small size of mice and
rats. The addition of the petitioner to Dr. p 1 1 ; [laboratory has allowed Dr. I to include
mice and rats in projects that previously involved larger animals. Dr. asserts:
First, the overall number of American graduates pursuing careers in science has
decreased. Second, as more and more cardiovascular researchers focus on molecular
biology, genetic manipulation, and biotechnology, there has been a reduction in the
number of whole animal physiologists, although this. group remains central to
understanding the systemic effects of pathological perturbations. As there are fewer
talented American graduates capable of performing sophisticated integrative cardiac
physiology research, the importance of foreign-born researchers in moving science
forward has increased.
Both Dr... and Dr. _ assert at length that the national interest waiver is warranted because
the petitioner has unique skills in the field. It cannot suffice, however, to state that the alien
possesses useful skills, or a "unique background." Special or unusual knowledge or training does not
inherently meet the national interest threshold. As stated above, the issue of whether similarly­
trained workers are available in the U.S. is an issue under the jurisdiction of the Department of
Labor. Matter ofNew York State Dep 't. of Transp., 22 I&N Dec. at 221. While counsel has asserted
that researchers of the highest quality are needed in the United States, it is the position of Citizenship
and Immigration Services (CIS) to grant national interest waivers on a case-by-case basis, rather than
to establish blanket waivers for entire fields of specialization, such as scientific researchers. !d. at
217. That said, the record contains additional information appropriate for consideration.
In' his third project at the University of Louisville, the petitioner was involved in an "ongoing"
project funded by a multidisciplinary Program Project Grant from the National Institutes of Health
(NIH), to investigate the cardiovascular effects of aldehydes, a pollutant. Dr. asserts that the
petitioner is critical forevaluating the mechanistic basis for the association between aldehydes and
cardiomyopathy. As stated above, however, the petitioner has left the University of Louisville. As
such, any assertions that the national interest waiver is warranted to allow the petitioner to complete
aproject at this university fail. .
Fourth, the petitioner investigated the role of the beta-adrenergic receptor ({3-AR) and oxidative
stress in the heart. The petitioner showed that sustained activation of {3-AR alters a fundamental
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physiologic phenomenon in the heart, that {3-AR activation reduces levels of a critical antioxidant
and that administration of an oxygen free radical scavenger during {3-AR activation prevents the
development of cardiac hypertrophy and dysfunction. This work has therapeutic implications and, as
demonstrated on appeal, is the most cited of the petitioner's work. .
Finally, the petitioner demonstrated that three select proteins, HO-l, iNOS and ecSOD are not only
cardioprotective during the early stages of a heart attack, but have previously unappreciated benefits
during chronic heart failure. Specifically, the petitioner demonstrated that upregulation of HO-l in
the failing heart is beneficial, counteracting dysfunction,hypertrophy, oxidative stress and
inflammatory activation. This work won an American Heart Association Scientific Sessions Poster
Prize in 2004.
Initially, the petitioner submitted several other letters from faculty at the University of Louisville
providing similar information. The petitioner also submitted 10 published articles and 16 abstracts.
In response to the director's request for additional evidence, the petitioner submitted three additional
letters. Dr. _ an associate professor at Harvard Medical School, asserts that he became
aware of the petitioner's work at the 2004 conference and has followed the petitioner's work since
that time. Dr. _ discusses the unique nature of the petitioner's skills and their importance to the
study of heart failure. Dr. an Emeritus Professor at the Keio University School of
Medicine, also praises the petitioner's unique skills at microsurgery. Finally, the petitioner
submitted a letter from Dr. Head of Heart Failure at Novartis. Dr. ~asserts that
the petitioner is now participating in Novartis' drug discovery efforts using his techniques for
evaluating heart function in mice and rats.
L
In response to the director's request for additional evidence ofthe petitioner's influence in the field,
counsel asserted that the petitioner had been "extensively and frequently cited." More specifically,
counsel asserted that three of the petitioner's article had been cited "numerous times by independent,
researchers." The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983);
.Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The only evidence supporting this
assertion prior to appeal was a self-serving list of citations within the petitioner's curriculum vitae.
On appeal, the petitioner submitted the actual articles citing his work. While the citations do not rise
to the level claimed by counsel, they demonstrate some recognition of the petitioner's work in the
field. Moreover, the petitioner submits a new and'persuasive letter from Dr. Specifically,
Dr. § asserts that a representative from Novartis was at the 2004 AHA conference and was
sufficiently impressed with the petition~r's award-winning poster presentation as to initiate
negotiations to hire the petitioner for drug development initiatives at Novartis. This information
persuasively demonstrates the significance of the petitioner's work presented at that conference. The
petitioner also submitted a stronger letter from Dr. _~ asserting that his laboratory looks to the
petitioner's 'work while developing microsurgery techniques. This new evidence submitted on
appeal significantly adds to the record that was before the director.
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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· above testimony, and' further testimony in the record, establishes that the
cardiology 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 alien employment certification process. Therefore, on the basis of the evidence
submitted, the petitioner has established that a waiver of the requirement. of an approved alien'
employment certification willbe 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.
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