sustained EB-2 NIW Case: Pharmacology

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
PUBuccoPy
LIN 05 163 52522
Date: ~N 11 2001Office: NEBRASKA SERVICE CENTER
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:
SELF-REPRESENTED
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.'J.-cY.L~
7-..-Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Nebraska 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) 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 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 did not contest that the
petitioner qualifies for the classification sought but concluded 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 reiterates his accomplishments. For the reasons discussed below, we find that
the director applied the wrong standard and that a waiver of the alien employment requirement is
warranted in this matter.
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 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.
The petitioner holds a Ph.D. in Physiological Sciences from Kobe University in Japan. 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 "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).
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.
The director quoted the above language and stated that the record did not establish that the petitioner's
"credentials exceed those of all aliens who seek to qualify as aliens of 'exceptional ability,' as that
terms is defined" at 8 C.F.R. § 204.5(k)(3)(ii). The director, however, ignores that the national interest
waiver is available to both aliens of exceptional ability and advanced degree professionals. We know
of no legal authority that requires an advanced degree professional to demonstrate that his credentials
exceed those of all aliens seeking classification as aliens of exceptional ability to secure a national
interest waiver. Rather, the benefit of this alien's entry into the United States must exceed the benefit
inherent in admitting aliens of exceptional ability. For example, the benefit for aliens of exceptional
ability not seeking a national interest waiver is not necessarily national in scope for each alien. See
Matter ofNew York State Dep 't ofTransp., 22 I&N Dec. 215, 217, n.3. (Comm. 1998.)
Matter of New York State Dep't. of Transp., 22 I&N Dec. at 215, 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.
Page 4
We concur with the director that the petitioner works in an area of intrinsic merit, pharmacology, and
that the proposed benefits of his work, prevention of cardiac cell death and deterioration of heart
function, would be national in scope. Moreover, his research is also relevant to other diseases. 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.
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 he 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 director dismissed the petitioner's reference letters, comparing the petitioner's own credentials
with those of his references. The director further dismissed the petitioner's publication and citation
record, concluding that the petitioner did not have a "sustained pattern of achievement." The
director appears to be applying a standard that approaches the stricter classification, aliens of
extraordinary ability pursuant to section 203(b)(1)(A) of the Act. That classification requires that the
alien be one of few at the top of his field and that he have sustained national or international acclaim.
Thus, a comparison with other experienced and renowned members of the field would be relevant in
such cases. The benefit sought in this matter, however, does not require that the petitioner's
credentials compare with his far more experienced expert references, although the credentials of his
peers might be relevant in determining the types of achievements inherent to the field.
The director acknowledged the submission of reference letters, but concluded that they did not establish
the overall impact of his work. More specifically, the director stated that while the petitioner has
contributed to the general body of knowledge in his field, "the types of research progress discussed
would not from a layman's comprehension appear to constitute the level of breakthrough that would
qualify the petitioner for the benefit being sought." We find, however, that the letters are very specific
in identifying how the petitioner has impacted the field and the record corroborates these claims.
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
Page 5
(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 795-796. 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 his reputation are the most persuasive.
As stated above, the petitioner received his Ph.D. from Kobe University in 2001. In 2002, the
petitioner joined the laboratory of at the University of Tennessee and
subsequently followed him to Loyola University Chicago where he remained as of the date of filing
in 2005.
a professor at Purdue University and former assistant professor at Kobe
University, indicates that he supervised the petitioner's work at Kobe University. The petitioner's
Ph.D. research focused on Ras, an oncogene that serves as a regulator of cell growth. Thus, a
mutation can lead to uncontrolled growth, or cancer. Specifically, Ras mutations are implicated in
15 percent of all cancers, with a rate of 90 percent for pancreatic and colon cancer. Thus, it is
important to characterize all~tors of Ras. The petitioner demonstrated several interactions in
the Ras transmission flow. _ notes that this work has been cited. In addition,
_ a professor at the University of Michigan, indicates that he became aware of the petitioner's
work while the petitioner was still a graduate student in Japan. _ reiterates the significance
of the work and also notes that it has been cited.
Director and Founder of the Biomedical Research Centre at the University of
British Columbia, indicates that his laboratory co-discovered a member of the. family, ~
indicates that he became aware of the petitioner's work in Japan as it focused on
interactions between M-Ras and other molecules. characterizes the petitioner's work
on Ras as "breakthrough" and indicates that after the petitioner's work was publish~
laboratories began studying an effector identified by the petitioner, PLCE. Similarly,_
Olson, Dean of the Graduate School of Biomedical Studies at the University of Texas who has
served on funding panels for most government agencies, asserts that the petitioner's work with Ras
caught his eye.
The petitioner's citation record supports the above letters. For example, the petitioner's articles on
PLCE and RA-GEF as an exchange factor for Ras had been cited 29 times and 35 times as of the date
of filing. In addition, the petitioner's first-authored article on RA-GEF-2 as a downstream target of
M-Ras had been cited 27 times as of the date of filing. Some of the cited propositions are prefaced
with words such as "interestingly" and "intriguingly." The petitioner's work has also been the
subject of review articles and is even discussed at length in a book chapter authored by an
independent research team.
In _ laboratory, the petitioner has focused on the regulation of adenylyl cyclases, an enzyme
that catalyzes the conversion of ATP to cAMP. This signaling molecule relates to metabolism, heart
contraction, neurotransmission, neuronal development, drug addition, memory and learning. As it
relates to heart disease, cAMP is required for normal heart function but overproduction leads to cell
death. Thus, an understanding of the regulation of cAMP is important in cardiology. The protein
associated with c-Myc (PAM) is a potent inhibitor of adenylyl cyclases. _ explains that PAM
is a large gene, making it difficult to construct. indicates that several researchers in his
laboratory had failed to do so, but that the petitioner was able to construct PAM and introduce it into
mammalian cells for expression. ~oes not merely opine that this work is significant or
original (as all published research is), but expressly states that since this work was published, "we
have had several requests from individuals all around the world requesting the cDNA constructs that
[the petitioner] has created." According to _his work has also fostered collaborations with
other laboratories.
, a professor at the University of Tennessee, discusses the petitioner's work with
PAM in additional detail. The petitioner elucidated the mechanism of the PAM inhibitory effect and
regions responsible for the effect, RHD2. More specifically, the petitioner demonstrated that two
histidine residues in RHD2 are responsible for PAM's inhibitory effect. _explains that this
work is important as it provides new target sequences for designing drugs for heart diseases throu the
use of mimicking agents. Another professor at the University of Tennessee,
explains how this work relates to neurology as the two histidine residues are critical for neuronal
development.
In addition to the above work,_ explains that the petitioner has also demonstrated that zinc and
copper inhibit Gsa, a protein that stimulates adenylyl cyclase activity. This work has "wide implication
in the pathogenesis of copper and zinc toxicity."
As of the date of filing, the petitioner had only published two recent articles with _ and the
record does not demonstrate that this recent work had been cited as of the date of filing. Nevertheless,
the petitioner submitted letters from independent scientists at the New Jersey Medical School and the
University of Utah discussing the significance of this work. These letters, in combination with the
evidence of the impact of his prior related work in Japan, sufficiently demonstrate that the petitioner
has a track record of success with a degree of influence on the field as a whole.
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
pharmacology research 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.