sustained EB-2 NIW Case: Pharmaceutical Sciences

U.S. Department of Homeland Security 
U.S. Citizenshiv and Immigration Services 
identifying data Se!r*c".!- 
 - 
O!ce ofAd~nrnlstratlve Appeals MS 2090 
prever.1 clce!lj ,:r. .U iriar:~zd 
 Washington, DC 20529-2090 
ir,vaion of he:scutl priv") 
 U. S. Citizenship 
and Immigration 
, 
FILE: Office: TEXAS SERVICE CENTER Date: A~JG 2 6 2009 
. .- 
SRC 07 274 50593 
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 1 153(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. 
un F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
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 AAO will 
sustain the appeal and approve the petition. 
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. At the 
time he filed the petition, the petitioner was a postdoctoral associate at Rutgers University, Piscataway, 
New ~erse~.' 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. 
On appeal, the petitioner submits a brief from counsel. 
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. 
1 
Since the filing date, other intending employers have filed Form 1-129 nonimmigrant petitions on the alien's behalf. 
All three petitions, listed below, have been approved. 
I- 129 Receipt Number Petitioning employer Filing date Dates of validity 
WAC 07 263 52384 Wayne State University 09/12/2007 0911 012007 - 0911 012008 
WAC 08 235 50834 Wayne State University 08/29/2008 09/10/2008 - 09/09/2011 
EAC 09 143 52187 Chem Master International, Inc. 0412 112009 1010 112009 - 09/30120 12 
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, 10 1 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] 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 
qualiQ 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 (Cornrnr. 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. 5 204.5(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. 
Page 4 
Several witness letters accompanied the July 26, 2007 filing of the petition; we shall discuss examples 
of these letters here. stated: 
[The petitioner] is a chemist who conducts internationally recognized advanced research 
in the area of pharmaceutical sciences. More specifically, [the petitioner's] research 
involves the study of new drug delivery systems for cancer therapeutics. . . . 
Information regarding [the petitioner's] research is widely referenced. Other scientists 
and researchers worldwide have cited his research over 70 times in publications in 
internationally acclaimed, peer adjudicated journal articles. . . . 
The letters of support submitted with this petition come from top scientific researchers 
from highly regarded academic institutions and research centers around the world. 
with both Rutgers and the University of Medicine and Dentistry of New Jersey (UMDNJ), stated: 
[The petitioner] has made groundbreaking findings in controlled drug delivery systems 
called polymeric nanocarriers to combat breast cancer. [The petitioner's] development 
of several unique strategies has lead [sic] to new applications in controlled drug delivery 
systems. . . . [The petitioner] demonstrated that his system is effective in protecting 
healthy human cells against tumor cells. His work has shown that certain chemical 
features of his drug delivery system are able to specifically target tumor cells. 
I came to know about [the petitioner] through his magnificent contributions to 
pharmaceutical science, which has appeared in a leading scientific journal. His work 
focuses on the delivery of anti-cancer agents using novel designs of polymer carriers. . . . 
When these polymers are hydrated, they can circulate in the blood for periods of up to 
about 24 hours. Another important advantage of this polymer is that the linkage can be 
designed to control where and when the drug is released by tumor cells. It also allows 
the use of much higher dose[s] of these anti-cancer drugs. He had demonstrated that up 
to 10 fold of polymer-drug conjugate material could be given in a single dose to a mouse 
without any toxicity. 
[The petitioner's] work establishes an excellent method for deprotection of the N-Boc 
group, a methodology useful for synthesis of many biologically active compounds and 
peptides. Discovering a usehl new method in organic chemistry is a significant 
achievement. 
Page 5 
. . . [The petitioner] is researching two promising therapies for cancer which may be 
applied to breast cancer. He has also discovered an important pathway for the 
prevention of cancer. His work has significant implications in cancer chemopreventive 
and chemotherapeutic areas and has significant value to improve health care. 
Also, [the petitioner] has discovered that his drug delivery system has potent 
chemotherapeutic activity against cutaneous breast carcinoma, melanoma and leukemia 
cells. [The petitioner] discovered that subcarcinogenic doses delivered by this system 
drastically increase tumor DNA damage ultimately leading to cell death and effective 
cancer treatment. This work is ground breaking because it provides a totally new system 
for anti-cancer intervention, and will no doubt lead to new considerations for preventive 
and therapeutic strategies. 
. of Adam Mickiewicz University, Poland, asserted that the 
petitioner's "continued research is necessary to yield commercially viable technology in the form of 
novel medications." 
The petitioner submitted printouts from citation databases and copies of citing articles and book 
chapters, establishing 73 citations of his work. About 90% of these citations are independent rather than 
self-citations by the petitioner or his co-authors. 
On September 25,2008, the director issued a request for evidence, instructing the petitioner "to further 
clarify how the beneficiary's research is greaterldifferent from [his] peers who have conducted similar 
research." In response, the petitioner submitted several new witness letters. Most of these letters focus 
on the petitioner's recent work with drug delivery systems in pregnant women and newborn infants. 
The petitioner had not yet begun such work at the time he filed the petition, and therefore we take notice 
champaign, who credited the petitioner with "key contributions in a number of areas of pharmaceutical 
chemistry with potential medical applications." 
also stated that the petitioner's "work has been widely cited by the scientific community 
around the world." The record amply supports this assertion. The petitioner submitted an updated 
citation index showing 1 10 citations bf pubi&ations, and copies of new citing articles. 
The director denied the petition on November 14, 2008. The director stated that "the many letters of 
support . . . have not clearly established the beneficiary has greater ability than their peers." The 
decision contained little discussion of the petitioner's work apart from a paragraph about his 
development of a Doxorubicin delivery system. 
On appeal, counsel argues that "independent expert letters and a noteworthy citation record . . . was 
seemingly ignored." There is merit to this assertion. The director did not mention the citations at all, 
Page 6 
and the director dismissed the witness letters with the observation that "many" of them were from the 
petitioner's collaborators. As counsel observes on appeal, "ten of the letters were from independent 
sources," many of whom had previously cited the petitioner's work. Thus, the petitioner not only 
established widespread and continuing citation of hs work, but also established how others were using 
his findings. The director's decision does not appear to have taken these factors into account. 
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. $ 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.