sustained EB-2 NIW Case: Neuroscience

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: FEB 0 5 2009 
SRC 07 221 50446 
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. 
u 
Shn F. Grissom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas 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 migration 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 fellow at the Massachusetts Eye and Ear Infirmary, Boston, a 
teaching hospital of Harvard Medical School. The petitioner asserts that an exemption fiom 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 fiom 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, a witness letter, and copies of articles and 
manuscripts. 
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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55,101 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 (USCIS)] 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 qualifL 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 (Commr. 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. 
We also note that the regulation at 8 C.F.R. 6 204.5(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 offerllabor 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 a statement accompanying the initial filing of the petition, counsel stated that the petitioner "has 
devoted all his life to neuroscience and related fields, especially in areas of research related to major 
health issues such as hearing and balance disorders." Regarding the petitioner's current work, counsel 
stated: 
Page 4 
[The petitioner's] ongoing postdoctoral work mainly involves the study of physiological 
properties of hair cells using genetic, biochemical, and electrophysiological approaches. 
He is currently focusing on investigating how the differences in hair cell morphology 
can be further related to the electrical signaling in hair cells after mechanotransduction 
of sounds, especially how the ion channels modify firing rates of nervous fibers that 
send information to the brain. This study will shed valuable insights into the mechanism 
of hearing at molecular and cellular level, with significant implications for the 
development of more rational and effective treatments for hearing and balance disorders. 
Counsel identified four published articles (two in English, two in Chinese) co-authored by the 
petitioner. Counsel stated that the petitioner's "exceptional expertise is highly valued by the scientific 
community as shown by the citations of his published research in the works of other scientists in the 
field such as the following." Counsel then identified one article that contained a citation of the 
petitioner's work. The implication seems to be that even a single citation demonstrates that a 
researcher's "exceptional expertise is highly valued by the scientific community." The AAO rejects this 
argument. The petitioner himself, in his own published articles, cited the work of dozens of researchers. 
It does not follow that the petitioner highly values the exceptional expertise of every one of these cited 
authors. Independent citations are a valuable gauge of the scientific community's reaction to a given 
article, but we must also look at the fiequency of such citations. The AAO will not automatically infer 
eligibility from the mere existence of a single citation. While a low number of citations is not 
necessarily or automatically fatal to a national interest waiver petition, it is certainly not a factor in a 
given petitioner's favor. (As we shall discuss later in this decision, the single documented citation is a 
self-citation by one of the petitioner's collaborators.) 
Several witness letters accom~anied the initial filing of the ~etition. Two of the witnesses are at Ohio 
who supervised the University, where the petitioner earned his doctorate. 
petitioner's doctoral studies, stated: 
In the past six years [the petitioner's] research contributions have been outstanding, well 
exceeding the normal expectations of Ph.D. dissertation work. The research he has 
published has made a significant impact on the field, is highly cited and regarded, and 
the concepts developed from his work have influenced the current course of hearing 
research. The insight that his work has provided in understanding the hndarnental 
aspects of hearing and vestibular function, and the immediate promise of this 
understanding being translated into practical solutions to hearing and balance-related 
problems, make the contributing of hs research of undeniable importance to the national 
interest. . . . 
During his PhD work in my lab, he studied the morphology and biophysics of hair cells, 
which are the basic elements for hearing and vestibular function. . . . Hair cells . . . 
detect sound and other mechanical vibrations. Hair cell bundles sit on top of the hair 
cells and are covered by otoconial membranes. . . . Neuronal fibers differ in their 
morphophysiological properties and these differences are strongly correlated with the 
Page 5 
location of their terminals on the neuroepithelium. 
 This raises the possibility that 
differences in neural fibers originate in part fiom spatial differences in peripheral 
mechanics, i.e., the otoconial membranes, and hair cell bundles. In [the petitioner's] 
study, he quantified the dimensions of the otoconial membranes, bundle heights, and the 
coupling between them. He found that all of them change systematically as functions of 
location and cell type. The patterns he observed resemble spatial patterns in neural fiber 
physiology and help explain them. This is the first study ever to quantify the 
morphology of hair cell bundles, otoconial membranes and the coupling between them. 
His results provide an experimental foundation for models of hearing and vestibular 
mechanics, and they will contribute to our understanding of signal processing in hearing 
research. 
. . . His study sets up the fi-arnework for other researchers to model the biophysics of hair 
cells, which reflects how the cells will respond to mechanical stimulus. 
Ohio University ~rofessor stated that the petitioner's "findings demonstrated that the 
structure of the peripheral components of hearing end-or ans is im ortant for hearing and vestibular 
function, whch is a significant new finding in the field." we added: "Based on his work, the 
goal of developing computer models that could mimic the responses of hair cell to sound or other 
mechanical stimulus has largely been realized and is the basis of ongoing research in a number of labs." 
Associate Professor , who supervises the petitioner's current work at the 
Massachusetts Eye and Ear Infirmary, stated: 
[The petitioner] has developed new methods to analyze the structures of the inner ear 
that respond to head movements. . . . The structural differences that he has elucidated 
between zones are likely to be responsible for different kinds of signals produced by the 
sensory cells. [The petitioner's] work both helps to explain already known differences 
in signals carried by vestibular nerve fibers from the inner ear to the brain, and products 
some new differences that can be tested for. . . . 
[The petitioner] has acquired, through doctoral training in this country and his ongoing 
postdoctoral research, deep and unmatched expertise in important aspects of vestibular 
ear function. 
The remainin witnesses did not specify their connection, if any, to the petitioner. Associate Professor 
d of Mount Sinai School of Medicine, New York, New York, credited the petitioner with 
"significant contributions to understanding the biomechanics, structural biology and signal transduction 
in the inner ear" and making "major progress in the quantification of hair cell morphology, which is 
essential for understanding hair cell biomechanics." 
Adjunct Associate Professor 
 of the University of California, Davis, deemed the 
petitioner "among the most talented young investigators in our field," and stated that the petitioner's 
Page 6 
"study has had and will continue to have significant impact on understanding the mechanism of hearing 
and balance and their dysfunction." 
Associate Professor 
 Leonard stated: "Among [the petitioner's] most remarkable 
achievements has been the development of new techques to document specific biomechanical 
cells that are correlated with morphologi~al differences between functional groups." 
ntended that the petitioner has. "had and will continue to have . . . a profound influence 
on hearing research on a national scale." asserted that "many other laboratories" have 
adopted the petitioner's techniques, and claimed that,' Professor and Director of 
the Virginia Tech School of Biomechanical Engineering and Sciences, one of the world's authorities on 
the hair cell mechanics, is usin 
 the petition&'s] results" in his own work. The petitioner's initial 
submission showed that d research group cited the petitioner's work. The citation is a self- 
citation, because the petitioner's mentor Prof. Peterson was a co-author of both the cited article and the 
citing article. 
On December 17, 2007, the director issued a request for evidence, instructing the petitioner to provide 
"evidence that the beneficiary's research is the basis of ongoing research in a number of labs" and to 
"[s]ubmit a citation index of the beneficiary's publications." 
In response, counsel listed four "[clitations by other researchers." The accompanying 
documentation shows that two of the four listed citations are self-citations by -. 
Counsel stated that these four citations "are merely examples and are by no means exhaustive. . . . 
[I]t is safe to say that there are very likely other citations not recorded by any of the databases, and 
that the number of citations is increasing as we speak." We are limited to considering the evidence 
provided; the assertion that other citations probably exist, but are unobtainable, has no weight in this 
proceeding. 
 The unsupported assertions of counsel do not constitute evidence. 
 See Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 
1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Several new letters accompanied the petitioner's response to the director's request for evidence. = 
- and 
 all asserted that they have not taught or collaborated with the 
petitioner, and that they know him only through familiarity with his work in their shared area of 
research. 
of Virginia Polytechnic Institute and State University stated: "I have 
known [the petitioner] for more than 8 years, during which time we have been collaborating on two 
NIH R01 research projects." use of the petitioner's model is clearly a result of this 
collaboration rather than the petitioner's greater influence in the field. stated that the 
petitioner's findings "have been outstanding and have revolutionized our concepts about the frequency 
tuning in the utricular hair cells," and that "several labs in the world use his results," including "at least 
one other hearing research lab in Germany." 
I The record indicates that's name is -ot - 
Page 7 
petitioner's "work has completely revolutionized our thinking about balance disorders caused by 
malfunction of vestibular sensory end-organs," and thereby "put the path of our research back on 
course." 
stated that the petitioner's "work was used by a laboratory at Virginia Tech to develop 
the first biological realistic computational models of the hair bundles and the extracellular matrix" 
(emphasis in original). As discussed above, and the petitioner both collaborated with 
in matters relating to that research. - added: "These computational models, 
which are based on [the petitioner's] doctoral research, were singled out in a recent review . . . as 
an example of particularly promising future directions in multiscale modeling of mechanosensation" 
(em~hasis in original). The ~etitioner did not submit a co~v of the review article mentioned bv Prof. 
u, I d 
. Also uncorroborated is claim that "[tlhe hair bundle model that was 
developed from [the petitioner's] research has now been used to model hair bundles on auditory hair 
cells by the highly respected laboratory of - at the University of Wisconsin, 
Madison." 
of the University of Illinois at Chicago, who has "known [the petitioner] 
for about 4 years" but has not collaborated with him, stated that the petitioner's "work is of very high 
quality and is essential to keeping progress in our field advancing." 
. of Washmgton University in St. Louis, Missouri, credited the petitioner's work 
with "a measurable irn act on the broad field of sensory neuroscience and specifically vestibular system 
function." stated: 
[The petitioner] has won . . . national recognition for his outstanding research and 
individual contributions of major significance in the field of neuroscience. In particular, 
[the petitioner] developed a very unique measuring and modeling approach with which 
to study balance receptor function. His seminal work on this topic is quite novel and 
unprecedented. In addition, [the petitioner] invented a method of analysis upon which to 
quantifjr his measurements. . . . His work is providing valuable and essential basic 
information regarding how the system responsible for motion detection, balance, and 
spatial orientation are formed. . . . [The petitioner's] work on ths topic is extremely 
important. 
The director denied the petition on April 7, 2008. The director acknowledged the intrinsic merit and 
national scope of the petitioner's field of research, but found that the record did not support several of 
the petitioner's claims (such as assertions regarding third-party use of the petitioner's 
work and counsel's assertion that other citations of the petitioner's work "very likely" exist). The 
director also noted that two of the four documented citations were self-citations by a collaborator. 
Page 8 
As we discuss the petitioner's submission on appeal, it is important that we emphasize elements of the 
appeal that did not lead to or support the decision to sustain the appeal and approve the petition. On 
appeal, counsel asserts that the petitioner had submitted ample evidence of eligibility, and only ''total 
ignorance of [the petitioner's] area of expertise" and a preconceived intention to deny the petition can 
explain the denial. With respect to the allegation of "ignorance of [the petitioner's] area of expertise," 
the AAO readily acknowledges that the area of expertise of USCIS adjudicators is immigration law 
rather than the anatomy of microscopic ear structures. Nevertheless, USCIS adjudicates all claims by 
applying the immigration laws of the United States to the unique facts of each proceeding, rather than 
relying on specialized expertise in a given subject area. 
Counsel cites no evidence to support the serious accusation that the Service Center adjudicator acted 
fiom a preconceived and unalterable intention to deny the petition. The denial itself, even if overturned 
by the AAO, is not prima facie evidence of bad faith at the initial adjudicative stage. While the AAO 
disagrees with the initial outcome of the petition, the AAO does not question the integrity or 
motivations of the previous adjudicator. The AAO's reversal of that decision is not in any way 
motivated, influenced, or affected by counsel's unwarranted attack on the adjudicator's honesty, and 
should not be construed to mean that the AAO in any way agrees with counsel's accusations. 
Shortly after impugning the integrity and competence of the adjudicating officer, counsel turns to the 
director's observation that some of's claims are unsupported. Counsel states: "It bothers 
me that . . . . there would be people implying that she is a liar," adding: "It makes me sad that you would 
discount the value of her statements as evidence, and outraged at your suggestion to question her 
professional integrity by doubting the truthfulness of the information she gave to a federal government 
agency." 
The director did not "imply[] that -1 is a liar." Rather, the director properly adhered to the 
principle that unsupported claims lack evidentiary weight. 
 The director did not state that Prof. 
claims were false or incorrect; the director only stated, logically and correctly, that the 
petitioner did not submit evidence to support s assertions. Counsel appears to imply that 
unsupported claims should suffice in place of evidence, but counsel cites no legal basis for this position 
because there is none to be had. Section 291 of the Act clearly places the burden of proof on the party 
seeking immigration benefits. The petitioner does not meet this burden by providing third-party claims 
(whatever their source). Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 
158, 165 (Comrnr. 1998) (citing Matter of Treasure Craft o Cali ornia, 14 I&N Dec. 190 (Regl. 
Cornrnr. 1972)). Neither the director nor the AAO assumes f s claims to be true or false; 
we simply withhold judgment about those statements unless and until evidence is provided to either 
confirm or contradict them. This is not a comment on integrity, but rather a factual 
finding regarding the absence of evidence in the record. 
The petitioner submits a new letter from , intended to address the director's concerns. 
states: "Evidently your concems arose because I did not supply sufficient detail in my 
previous letter." Lack of detail was an issue, but not the only issue. More fundamentally, Prof 
Page 9 
is not in a position to speak for other laboratories on the question of whether those other 
laboratories have relied on the petitioner's work. 
identifies two "reviews, which cite the Virginia Tech models as examples of promising 
new directions or as providing 'new insights' into hair cell function." One review appeared in the 
Journal of Membrane Biolom in 2006: the other in Briefinas in Bioinformatics the following year. 
d - - - 
asserts that "the Virginia Tech models," developed by, are directly based on 
the petitioner's work, and therefore serve as evidence of the etitioner's impact on the field. The record 
does not contain the two review articles mentioned by and therefore it is not possible to 
ascertain, fiom the evidence provided, the extent or context of the relevant comments in the review 
articles. 
asserts that s papers that have relied on the petitioner's work have, in turn, 
"been cited a total of 18 times (excluding self citations)" (emphasis in original). The petitioner does not 
support hs claim by submitting copies of the citing articles or a printout from a citation database. Even 
if such evidence had been 
 the AAO is hesitant to relyon secondary citations in this manner. 
The burden of proof would be on the petitioner to establish that the citing researchers cited- 
work only because had, in turn, relied on the petitioner's work. 
At the time 
 provided this letter, the director had already advised the petitioner that simply 
mentioning evi ence cannot suffice in place of submitting the evidence itself. Neither USCIS in 
general, nor the AAO in particular, is required to purchase or otherwise obtain the articles identified by 
- It is the petitioner's responsibility to provide the necessary evidence, and the petitioner 
cannot abdicate this responsibility simply by telling USCIS where such evidence can be obtained. 
It may very well be the case that every claim akes is entirely true; the AAO has no 
basis to suspect that 
 has been either honestly mistaken or willfully untruthful. Without 
corroborating evidence, however, the AAO will not make the assumption -that -1 
assertions are true, or that they have the same weight as primary documentary evidence. 
The petitioner submits documentation showing that he co-authored several journal articles that were 
published, or accepted for publication, after the petition's July 13, 2007 filing date. The beneficiary 
of an immigrant visa petition must be eligible at the time of filing, rather than become eligible at a 
later date owing to new developments. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 
1971). The AAO duly notes the articles as evidence that the petitioner has continued to work 
productively in the same field, but beyond that the articles, manuscripts, and related materials carry 
little weight in this proceeding. 
Having dispensed with the more flawed elements of the appeal, we turn to the more persuasive elements 
of the appeal. Counsel states that the record contains "plentiful of evidence" (sic) to establish the 
petitioner's eligibility for the waiver, including several strong letters from independent witnesses. 
While the director was correct that "[Qrequent citation is often evidence that other researchers in the 
field are applying and relying upon [one's] work," citations are not the only such evidence. A number 
of researchers at a variety of institutions, who claimed no working relationship with the petitioner, have 
asserted that they rely on the petitioner's work. Furthermore, these witnesses have indicated that the 
petitioner's contributions are fundamental rather than incremental. Independent witness letters do not 
invariably compel the approval of a petition, but in this instance the letters, in conjunction with the rest 
of the record, establish a preponderance of evidence in favor of approval of the waiver request and the 
underlying petition. 
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. 8 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.