sustained EB-2 NIW Case: Microbiology

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PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
WAC 03 227 53502
Office: CALIFORNIA SERVICE CENTER Date: SEP 11 lOOI
INRE: 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 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.
~~~Robert P. Wiemann, Chief
/ Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, California Service Center, denied the employment-based immigrant
visa petition, which 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks employment as a senior research associate. 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 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, counsel asserts that the petitioner submitted evidence of her achievements, including
citations, and submits additional citation evidence. For the reasons discussed below, we find that the
director erroneously focused on the petitioner's nonimmigrant status and failed to give sufficient weight
to the evidence submitted.
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 ofjob 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 petitioner holds a Master's degree in Microbiology from Texas A&M University, awarded in
December 1997. 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.
The remaining issue is whether the petitioner 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 the phrase "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., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part:
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't. of Transp., 22 I&N Dec. 215,217-18 (Comm. 1998)[hereinafter
"NYSDOT"], 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. Id. at 217. Next, it must be shown that the proposed benefit will be national
in scope. Id. 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. Id. 217-18.
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. Id. at 219. 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. Id.
We concur with the director that the petitioner works in an area of intrinsic merit, microbiology, and
that the proposed benefits of her work, the development of novel therapeutic agents against
biowarfare pathogens, 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.
In evaluating this question, the director stated the following:
The petitioner has not established that there is any real urgency to her entry into the
United States in an immigrant status. . .. In fact, the petitioner must show that by not
being given immediate immigrant status the national interest of the United States
Page 4
would actually be harmed. The petitioner has failed to establish that such harm to the
national interest would occur if her employer took the extra time to obtain a labor
certification through the normal labor certification process.
The director then noted the petitioner's nonimmigrant status and concluded that if the petitioner's
employer applied immediately for an alien employment certification, the process "may even be
completed" prior to the expiration of that status.
The language used by the director does not reflect the proper standard set forth in NYSDOT, 22 I&N
Dec. at 217-18. That decision does state that the national interest waiver was not intended simply as a
means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification
process. Id. at 223. This language, however, merely emphasizes that the inconvenience of the process
itself is not an argument to waive the requirement. Such language does not imply that the petitioner
must demonstrate that there is any ''urgency'' to her adjustment to lawful permanent resident status. In
fact, the AAO clearly stated that the inapplicability of the labor certification process is not, in and of
itself: a basis to waive that process. Id. at 218, n. 5. Thus, had the petitioner demonstrated that the
labor certification process would have lasted longer than her nonimmigrant status, that information
would not have justified the waiver. I In light of the above, the director erred in making this issue the
focus of his decision.
Several of the references discuss the importance of researching means to counter bioterrorism.
Eligibility for the waiver, however, 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. Id. at 218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a
"unique background." Id. at 221. 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 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. Id. at 221, n. 7.
The petitioner submitted several letters from colleagues and two letters from independent members of
her field. In his final decision, the director concluded that "some"of the letters "appear to be more akin
to reference letters than to testimonials to her individual potential to benefit the country on a national
1 The director's analysis would favor aliens who file their petitions later in their stay as a nonimmigrant
rather than those with superior achievements.
Page 5
impact level." The director further states that the opinions in the letters were "highly subjective" and
unsupported by more objective evidence. The distinction between "reference letters" and
"testimonials" is not immediately clear. Moreover, as noted by the petitioner on appeal, the director
failed to address the objective evidence submitted in support of the assertions in the letters, such as the
evidence that the petitioner's work is well cited.
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions
statements submitted as expert testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS is ultimately responsible for making the final determination regarding
an alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795. CIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any way questionable. Id.
at 795; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through her reputation and who have applied her work are
the most persuasive.
As stated above, the petitioner received her Master's degree from Texas A&M University in 1997.
from March 1998 through April 2003, the petitioner worked for Microcide Pharmaceuticals, which
then became Essential Therapeutics. The petitioner then joined her current employer, Anacor
Pharmaceuticals. As of the date of filing, the petitioner had only worked for Anacor for three
months. Thus, while we acknowledge that the petitioner's proposed work on anti-bioterror agents
would have benefits that are national in scope, we must examine her past work for Essential in order
to ascertain whether she had already demonstrated sufficient accomplishments such that future
benefits in the field are not merely speculative.
the Associate Director of Discovery Biology at Essential and the petitioner's
coauthor on three articles, discusses the petitioner's work at Essential. Specifically, the petitioner
"was very instrumental in the development of intricate biochemical assays to study" antimicrobials
that inhibit the activity of multidrug resistant pumps, membrane transporters that confer resistance to
unrelated antibiotics. The petitioner demonstrated that "various substrates were captured by the
pump in the periplasm of gram-negative bacteria," impacting the design of pump inhibitors as novel
antimicrobial agents. characterizes this work as a "major discovery" and asserts
that the petitioner's article reporting these results was "selected as paper of the month." Although
the paper of the month selection is not documented in the record, the petitioner did submit evidence
that this article had been cited 17 times as of the date of filing. On appeal, the petitioner documented
that the number of citations had risen to 33. 2 While the petitioner must establish eligibility as of the
date of filing in 2003, see 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Regl.
Commr. 1971), the continued citation of the petitioner's article demonstrates that this work,
completed, published and moderately cited as of the date of filing, continues to influence current
research.
a former employee at Essential and one of the petitioner's coauthors, notes the
petitioner's experience with both gram-positive and gram-negative bacteria as well as with "a number
of fungal pathogens." , an associate director of the Biology Group at Essential,
discusses the growing threat of life-threatening fungal infections and asserts that the petitioner helped in
the development of a new anti-fungal agent the company plans to "enter clinical trials."
a research microbiologist at the Center for Veterinary Medicine, U.S. Food and
Drug Administration, asserts that he learned about the petitioner's work at a scientific conference and
has been "following her career ever since." He asserts generally that the petitioner has "facilitated the
work of many other scientists." While he does not identify the other scientists or assert that his own
research has been influenced by the petitioner, the record contains evidence that three of the etitioner's
articles have been moderately cited. Moreover, the record contains a letter from
an assistant professor at the University of Oklahoma, who states:
[The petitioner's] research greatly impacted my own research interests, which are
focused on the mechanistic studies of bacterial multidrug resistance. In particular, her
recent article in the journal [Molecular Biology] ... addressed a very important question
how multi drug proteins are able to recognize such broad spectrum of antimicrobial
agents. This question is of particular interest to us. Using knowledge obtained through
genetic studies of bacterial cells such as those published by [the petitioner], we design
biochemical assays, which could be used to gain insight into how mechanistically
multi drug proteins protect bacterial cells from antimicrobials. Review articles and
research manuscripts which I wrote recently invariable cite [the petitioner's] work as a
major contribution to the field.
The record confirms that I has cited the petitioner, including in a review article coauthored
with Notably, several of the citations of the petitioner's work appear in review
articles. For example, of Tufts University not only cites the petitioner's article in a
"Minireview" but also discusses how this work can be applied. In an article discussing the use of
genomics in revolutionizing drug discovery in Current Opinion in Microbiology, the authors cite four
articles reporting the significance of efflux pumps in mediating resistance but single out the petitioner's
article as being "of special interest." In a Minireview published in the Journal of Bacteriology, the
authors discuss recent research on MexB, concluding that the etitioner's article represented the "study
with the highest resolution." In addition, a review article by cites the petitioner's articles
as one of five studies that "can assist in rational inhibitor design." Finally, while the petitioner did not
2 This article has now been cited 77 times according to http://scholar.google.com (accessed Aug. 27, 2007).
Page 7
submit the portion of text where she is cited, she did document that she was cited in an "Interim Report
on Genomics of Escherichia Coli," appearing in the Annual Reviews on Microbiology. The above
discussions in review articles are objective evidence that supports the assertions by the petitioner's
references as to the significance of her work.
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
microbiology 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 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.