DATE:
INRE :
JAN 0 9 2,013
Petitioner: ·
Beneficiary:
Office: TEXAS SERVICE CENTER
; r {
U.S. Dq>art:mcnt: ofHomcland St~ curity l).S. Citi zenship and lmrnigrJLion Service
.'-\dministrativ e Appeal s Office (AAO )
20 Massachu setts Ave., N. W ., MS 2090
Washin!2ton. DC 20529-2090
U.S. Citizenship and Immigration
.Services
Fll.,E:
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. § l153(b)(2) ON BEHALF OF PETITIONER:
INSTRUCTIONS: .
EnClosed please find . the decision of the Administrative Appeals Office in your case. All of the ·documents related to this matter hav.e been l'etumed to the office that originally decided your case. Please be advised that any f~ither inquiry that you might have q)nGerning y~mr case must be made to that office. I. ,: '
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 'in accordance with the instructions on Form Ir290B, Notice of Appeal or Motion, with a fee of $630., The specific requirements for filing such amotion can be found at S·C:f'.R. § 103.5. Do not tile any motion directly with the AAO. Please be aware thilt 8 C.F.R. § I 03.5(a)(l)(i) requires any motion, to be filed within 30 days of the decision that the motion' seeks to reconsider or reopen.
Thank you, l-tOWYldD ·. ·~ , · · . . ·
() Ron Rosenberg · . . ..
{ Acti.ng Chief, Administrative Appeals Off1ce www.uscis.gov
DISCUSSION: The . employment~based immigrant v.isa petition was der1ied by the Director, . Texas Service Cent~r, and is now b.efoh:~ tile Administrative Appeals Office (AAO) on appeal. The appeal will be dismis,sed. '
. i
The petitioner seeks classification under section 203(b)(2) of the .lmmigrationand Nationality Act (the Act), 8 UJS.C. § 1153(b)(2), as a member of the ;professions holding an advanced. degree. The petitioper seeks employment as a "Research As~ociate II" (biological researcher). At the time of filing, the petitione~ was working as· a "resear~h technician" in the laboratory of petitioner asserts that an exemption from the requirement of a job offer, and thus. ofalabor certification, is in th~ national interest of the United States. The. director found that the petitioner qualifies for classification as a member of the professions hol,ding an advanced degree , but that the petitioner has 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 "has a past i record of accomplishments that demonstrate a future,benefit to the national interest" and that th~ petitioner "plays a significant role in her field, beyond any U.S. worker with similar qualifi~atio~s."No interest from users, customers or investors The petjtioner submits a brief with additional evidence. For the reasons discussed below? the AAO will uphold the director's · decision.
Section 203(b) of the Act states, in pertinent part: .
(2) Aliens who Are Members of the Professions Hoiding Advanc~d 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 science~, iuts, 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 bu~iness are sought by an employer in the United States.
(B) Waiver of Job Offer- · ·
(i) ... the Attorney General' rimy, when the Attorney Generaf deems it to be in tlw national. interest, waive the requirements of subparagraph.(A) that an .alien's s'ervi~esinthe sciences, arts, professions, or business be .sought by an .. employer in the United Stales. the petitoner r:eceived a Master of Science degree ·· in Biology from in 2009/ The director found that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue in contention is whether the petitioner has p. 3 established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.
Neither th.e 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, lOlst Cong., 1st Sess., 11 (1989). Supplementary information to regulations implementing the Immigration Act of 1990, 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 t9 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 ~he nati,onal interest. Each case is to be judged on its own merits.
· In reNew .York State Dept. of TransJ?ortation (NYSD01), 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 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. ld. at 217. Next, the petitioner must show th~t the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve the national ittterest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. ld. at 217-18.
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. ld. 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 th~ 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 entir~ly speculative. /d.
The AAO also notes· that the regulation at 8 C.F.R. § 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, "exceptional' ability" is not, by itself sufficient cause for a national interest waiver. Id. at 218. Thus, the benefit which the alien presents to her field of endeavor must greatly exceed the "achievements and significant contributions" contemplated for that classification. ld; see also id. at 222. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as a member of the profes~dons holding an advanced degree, that p. 4 . alien cannot qualify for a waiver ju~t by demonstrating a degr~e of expertise significanrly above that ordinarily encountered in his or her field of expertise. · The AAO concurs v{ith the director's determination that the petitioner's work is in an area of intt:insic merit and finds that the-proposed benefits of her work would be national in scope . It remains, then, to determine whether the petitioner will benefd the national interest to a greater extent than an available U.S. worker with the same inininwm q\talifications.
Eligibility Jor the . waiver must res~ with the alien's own q4alific.ations rather than with the position sought. In other words; the AAO genenilly does not :accept the argument that a given · project isso importqnt that any alien qualified to work on th~s project must also qualify for a national interest waiver. /d. at 218. Moreover, it qmnot suffiee 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 ,issJ.le under thejurisdiction of the Department ·of Labor. !d. 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 intere~t waiver, over and above the visa · ·classification he see~s. By seeking an extra benefit, the petitjoner assumes an extra burden of proof. A petitioner , must demonstrate a past history of .achievement with some degree Qf influence on the field as a whole. ld. at 219, n. 6. In evaluadng the petitioner's achievements , the AAO notes that original innovation; -such as demcinstrat¢d by a patent, is insufficient by itself. whether the ~pecific inilovatioriserves the national intetest must be decided on a case-by case basis. /d. at 221; n. 7.
Along with an article being drafted for publication in and copies of her presentations at: various symposiums and conferences;. the petitioner submitted lettei·s of support discussing her work and research qualifications. states:
Because and I have worked closc;ly together I haveJirst-hand knowledge of her abilities. . . . [The petitioner's] graduate school tr~ining in. chemistry and biochemistry, and her experience in clinical research as well as biotechnology has been a very good fit for our research program. [The petitioner] also showed herself to be incredibly adept at mastering new techniques in. biochemistry and molecul~r biology, and a degree of expertise significantly above that ordinarily encountered in the life science field at her level. [The petitioner] has tackled a very difficult problem, and nevertheless because of her technical exp~rtise, intellectual prowess arid sh~er d~termination she successfully carried out a new line of investigation both technically and topically in which we are lools:irig for new fat cell genes that are candidates for treating obesity. Her work has great potential b~nefits for our country_ if.we can· develop therap}es for obesity.
Page 5. comments on the petitioner's .educational trainillg, r~search · ex·perience, and mastery of biochemistry and rpolecular biology te.chrtiques. . Simple exposure to· aqvanced technology constitutes, essential~y, occupational trainingwhich can be artic~lated on an application for an alien , employment certific~tiort. Special or linusual knowl~dge or trail).ing, while perhaps attractive to the prospectiveU.S. employer, does:not inherently meenhe natiomll interest threshold. !d. at 221. ln addition, ;asserts that the petitioner'swork "has great potential benefits for our country if we can develop: therapies for obesity," but there is no' documentary evidence that the . petitioner's speci'fic rese~rch finding~ . have already resulted in improved treatment ·methodologies or have otherwise influen~ed the field as a who)e. Eligibility must· be established at the tin)e of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matterof Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of /zummi, 22 I&N D~c. 1(59, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouflf.e, 18 I&N :Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only s~b s equent to the filing of a petition." /d. at 176. . . states that the petitioner ·worked in . his · labor~tory during her graduate studi~s at further states: ·
[The petitioner's] research . is · of significant national interest because the damage of nematodes in agricultural products is a serious problem. In: the U ~ S., there is a $10 billion to $100 billion l0~s Worldwide caused annually by pathogepic nematodes: . . . Therefore , an urgent necess:ityrises to investigate a new method of n~matode management to solve these .problems: [The petitioner's] ·research. can provide rffective and environmentally friendly nematode control by developing the transgenic pl~nts to which programmed cell death pathway genes and ~e RNA interference based tec;:hnique have been introduced . · . ' . . .
[The petitioner] is an excep~ional scientist with . extraordinary multiple disciplinary expertise. Since joining my laboratory , [the petitioner] ·ha~ achieved an impressive array of accompli shments ·requiriqg multidiscipline expertise . f\s' a molecular analysis expert , · ·she performed tr;emendous times of RT-PCR and extraction of RNA from the transgenic plants. In additi9n, she maintained more than 1000 transgynic plants for three years, and developed a unique method to measure hatching ratios of nematode embryos . After her gradu~tion, [the ;petitionet] joined laboratory ·;to study the health effects of pesticides and the molecular · impact towards breast caqcer. She is an accomplished scientist who h~s u~raveled the mole~i.tlar basis of impottant food crop destruction by pests to ~nderst~nding the disease ·i~pact of the very pesticides used to eradicate the problem- a truly extraordinary continuum of expertise. ' ·Argued the field's importance, not the endeavor's
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.j co·mments about the importance of research devoted to controlling nematodes .· . . . '
. to prevent damage 'to agricultUral products, but does not provide specific examples of how thG. petitioner's ,work has already been applied in .the a·griculturai industry as an effective nematode control technique 9r has otherwi se 1nfluem1ed the field as a whole at the time of filing. Assertions regarding 'the -overall importance of the alien's area of expe1tise cannot .... ' ;
(b)(6)Page 6 ·
- I suffice to establish e:ligibility for ·a -national inter~st waiver. NYSDOT, 22l&N Dec. at 220. As previously discussed , eligibility for: the waiver must ' rest wi~h the alien's own qualifications rather than with the position sought.· USCIS does not accept 'the argument that a given project is · so import<;mt that any alien qualified to ~ork on rhis project! must also qualify for a national .interest waiver. !d. at 218. ___ _. states that he served as the · petitioner's faculty advisor beginning in the Fall _ of 2007 and that she later worked in his laboratory in 2009. further stat~~:
[The petitioner] joined my laboratory. after completing her advanced Master's degree to investigate the project of pesticide exposure in. estrogen~l}egative and estrogen"positive cells, which is supported by National Institute of He-alth, because of her unique combination of expertise in molecular . biology, microscopy :, and clinical lab training. She was an integral part of my research group at
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[Thepetitioner's'] research is of significant national interes;t because it engages an under" .served populatiqn .at high ~isk for pesticide exposure as a critic;al health disparity -consistent with ~he mission of the NIMHD . [National lns~itute on Minority Health and Health Disparitiys]. Furthermore, this work has ·ramifications.on the biological effects of ' pesticide accumulation within the human body that affect~ every American. This work 'was presented at an international scientific meeting a~d is in the process of publication in an int~rnational cancer journal. asserts thatthe petitioner has a :'unique combination :of expertise in molecular biology , microscopy, and clinical lab training." . It camiot suffice, ·however, to state that the alien possesses useful skil}s, 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 lJ.S .. is an issue under th~ jurisdiction of the DepartmP.nt nf 1 .~hM !d. at 21. also comments that the petitioner's work: was presented atthe : but there is no documentary evidep.ce indicating that the petitioner's pl:esented work has :been frprn .. mtly cited by independent researchers or has otherwise impact ed the field as a whoie . also sta.tes that the petitibner's work "is in the proces s of publication" in an ;internatiOnal cancer journal. _.·The AAO : notes, however, that any impact resulting from this 'publication ·post"dates the filing of the · petition . As previously discussed, eligibility must be :established at the time of filirig. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak; 14 I&N Dec . at 49. A petition cannot be approved :at a future date after the petitioner becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec~ at 175.
, . ·I· states:
'In the department of Research and Development (R&D), we developed our own new diagnostic tes-t for melanoma .by using ~n assay of fluorescence in"situ . hybridization (FISH). is a four"probe FISH assay on three loci to identify genetic mutations that may be present even before phenotypic changes.
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Since . JOining my laboratory, [the petitioner]' has achieved an impressive array of· accomplishment~ requiring multidiscipline ,expertise. [Tije petitioner] had completely · devoted her time and efforts on this new diagnostic test :for melanoma. She has spent ~normous amou~t of time at the laboratory to analyze data and . determine the proper procedures to move forward. First; [the petitioner] optirpized a new protocol. for the :diagnostic test of melanoma by manual and demonstrated reproducible results. Next, [the : petitioner] analyied the captur~d images and automated probe signal enumerations which were obtained wjth the MetaferSlide ,Scanning System (Metasystems) .... The average signalcounts of: the individual probes and relqtive signal~ counts to centromere six for each cell were acquired by [the petitioner] and other clinical laboratory scientists .... Without [the petitioner's] excellent a~ilities and research cpntributions, the results would! not have been able to be accomplished and the company's .deadline would not ave been . met. . These accomplishments have been reported at the While states that the petitiqner evaluated data results for to optimize the diagnostic protocol, there is. no documentary evidence showing that the petitioner authored or originated the discovery of this : four~probe ·FISH assay tool for rli::u,..nosinQ melanoma. also· comments tha(th~ results were reported at the but there is no documentary eviderice demonstrating that the .petitioner's specific work pn the project has been frequently cited by independent researchers or has otherwise notably influenced th'e fiel~ as a whole.Citation record not persuasive
In his initial letter dated May 12, 2011,
' states that he was the petitioner' sJundergraduate academic advisor and instructor in several courses at goes on to : discuss the petitioner's academic accomplishments ~hile pursuing a baccalaureate degree at . Academic performance, · measured by such criteria ·as grade point average, however, c' cannot alone satisfy the national interest threshold ot assure substantial prospective national benefit. In all cases the petitioner must demonstrate specific prior achievements. that establish the alien's ability to benefit the national interest. · NYSDOT, 22 I&N Dec. at 219, n.6. In iiddition, states that the petitioner "possesses many skills that ·should continue to :make her an asset in biological . research: she has strong academic abilities in disciplines that · combi~e conceptual and technical . skills, she has excellent labor~t6ry skills, and she is very ·hard~working and disciplined." However, it cannqt suffice to· state that the alien . possesses useful skills, or a "unique background." Special or unusual knowledge or training Clods not inherently meet the national interest threshold. The issue of whether similarix.:.trained wor:kers are available in the U.S. is an issue under the jurisdiction ofthe Department of Labor. ld .. at 221. states:
Page_& .,· . ..- . spe,cific project involves the study of the novel · role of beta-adrenergic receptors on ad~pose cell.s in fat · tissue to regulate a growth-pi"omoting process. not normally associated with adrenaline action. Giyen the integral role of adipose tissue in the development .of obesity and· diabetes, this research project promotes basic understanding of the·biology of the fat cell and could assist in identifying· new targets for therapeutic intervention. [The petitioner's] research has national and international importance in that it is a critical step in the process of developing a greater undet:standing of the. cause .and' treatment of obesity and diabetes. The NIH has approved a new grant for this proj.ect ~n the . amount ·of approximately $500,000.00 because it recognizes the significant importance of this research project.
This research project is guided by and her specially selected team of specialists, each: of whom forms . a critical. part of the reseC;lrch team. We understand that:. [the petitioner] is a part of this team and is tesponsibl~ for performing the study of fundamental . cellular and molecular mechanisms in adipocytes. . . . In lab, they identified ~ new splice variant of S6Kl in mice artd humans called S6Kl b and S6Klc. Importantly, S6Klc· is struCturally identical bet\;Veen mice and humans.· It is hypothesized th~t S6Klc can act as k~nase-dead due to lacking the catalytic domain , but . may act as dom?,in-inhibitor~ because it retains TOR signaling motif (TOS).
In addition, [the' petitioner] has been working on. other research to determine the role of beta-adrenergic receptors CPARs) and cAMP-stimulated ~6Kl activity in adipocytes to selectivity stimulate the · translation of a set of mRN'A~ that are distinct from those regulated by insuiin. She has performed fractionation of poly-ribosomes, RNA isolations, and microarray profiling using 3T3-Ll adipocyte as a ceil model. . . . Because of the nigh-level nature of this research, as well as its uniqu~ role in the understanding of regulation of cell fate between W AT and BAT by alternat)ve splicing ,of the 56K 1 gene , ·this may lead to ,drug discovery for controlling obesity in hlimans. · states t)1atthe NIH has approved a new grant for ' project in the amount of approximately $500 ~ 000 . 00 to continl]e her research. It ~an be argued, however, that most research, in order to receive funding, must present some benefit to the general pool of scientific knowledge. It does not follow that every research~r whose work is funde~ with a U.S. government grant inherently serves the national interest to an extent that justifies a waiver of the job offe~ requirement. The petitioner failed to submit supporti'ng documentary evidence showing that her specific wcirk ~epresents groundbreaking advances that have significantly impacted the field at large. also asserts that the petitioner's work "may lead to drug discovery fot controlling obesity in humans," but the record does not show that the petitioner's work has yet had that ·effect. Speculation · about the . possible future in).pact of the peritioner's work is corijecture, not evidence, and cannot establish eligibility for the . national interest waiver.Claims not backed by documents As previously discussed, eligibility must be established at : the time of filing. 8 C.F.R. §§ 103.2(b)(l), -(12)'; Matter of ~atigbak, 14 I&N.Dec. at 49. states: "
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· l have known ·[the petitioner] as her advisor in completingthe Biotechnology Certificate Program · and a~ the Departm~nt Chair overseeing her 'work as a Biology graduat e student.... For .her degree thesis, [the petitioner] ·completed an extremely exciting research project · under the guidance and mentorship of Professor of Biology , wherein she applied. -her skills as a recombinant DNA biotechnologist with new skills in the developmental biology and fluorescence cellular microscopy of nematodes (agricultural worm pests) to demonstrate the potential for genetic engineerin 'g of plants to protectthem from devast~tion -by nematode infection (a . very costly · agrieultural problein in the. U.S.). Her diligence and tenacity in conducting these lengthy research experiments led to seminal discoveries for this newfield ofcrop genetic engineering .to control of infectious agents. asserts that the petiti~ner's work "has led to seminal discoveries for this new field of crop genetic engineJriQg to control of infectious'.agents ," but fails to provide ,specific 'examples of how the petitioner's original work has been successfully applied in the agricultural industry or has otherwise signifiCantly influenced the field .as a whole. While the petitioner's research is no doubt of value , it cim be argued that any research must be shown to be original and present some benefit if it is to receive funding and attention from the scientific community. Any ' Ph.D . thesis or postdoctoral research , in order to be accepted for graduation, publication; presentation, ·or funding, must offer new and useful information to tpe pool of knowledge. . It does not follow that every researcher who performs original research that adds to the general pool of knowledge _irfierently serves the national interest to an extent that justifies a waiver of the job offer requirement. . · · · · · continues:
Clinical Labon1tory Scientists are in extremely short S\}pply throughout the U.S . as ·reported by a variety of scientific and news organizations; e.g. a recent article appearing in the Twin Citi~s "Star Tribune", cited on "iseek", a Mil1Flesota career resources website . (httn://www.iseek.org/news/fw/fw7815FutureWork .html) '[The · petitioner] initiated her post-graduate career . with an where she was hired quickly after graduation because of her unique combination of both CLS and biotechnology lab skills.
As stated in NYSDO,T, 22 I&N Dec. at 2'fl , it cannot suffice to state that the alien possesses useful skills, or:a "unique background." In addition, whiie asserts that there is a shOitage of workers with the petitioner's skills, NYSDOT specifically rejects that argument. !d. at 221. When discussing claims that the alien in that case possessed · specialized design techniques, the · AAO assert.ed that·such ex;pertise: · · wou.ld appear to. be a valid requirement for the petiti~her to set f~rth on an application for a labor certificati6,n .. [The 1 assertion of a labor shOI:tage, therefore, should be tested through . the labor certification process. .
. . .The issue of whether similar! y-trained workers are available in the U.S. is an issue under the jurisdiction of the Department of Labor.
(b)(6)Page 10
/d. at 220-221. states:
[The petitioner] pursued plant pathogen-related work in the' lab of for her master's thes'is, and she has been working at .the on the regulatio'n of body weight, specificaily by performing an array of high-tech experimental techniques, including RNA analysis through t_he use of microarrays. In addition to . her :wide range of research interests, she has a wide range of technical experience, inch.Jding transgenics, nematode culture, PCK RT-PCR, microarrays, and a wide range of complex analytical techniques. [The petitioner's] thesis was one of the best two that I have read in 16 years at > • discusses the petitioner's researeh experience, but as previously discussed, s~mple training in advanced_technology orunusual knowledge, while perhaps attractive to the prospective ·U.S. employer, does _not inherently meet the national interest threshold. /d. at 221. also comments onthe petitioner's maste~'s thesis, but then; is no docl!mentary evidence showing that her thesis is frequently cited by ' independent researchers or has otherwise' significantly influenced the · field as a whole. · · · - asserts that the petitioner "has a relatively unique comb.ination of skills and t~aining- sub~tantial medicaf (clinical) training, a high level of expertise in molecular biology techniques, and substantial expertise in the molecular biology and cell biology of nematodes." Similarl , states: . "[The petitioner]possesses · a combination of unique ski1ls .. , . She became the laboratory expert in ' RT~PCR and since then · has developed multiple skills (RNAi, ELISA, MALDJ-MS, western blot, atomi:c absorption Spectroscopy, flow cytometry, GCMS, etc.)." However, as previously discussed, it cannot suffice to state that the alien possessys useful skills, or a "unique background." Regardless of the alien's .particular experience ; or skills, even assuming they are unique, · th{! benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent nation;:tl interest in protecting U.S: workers through the labor . certificationprocess.~ /d. at 221. · ·
On February 29, 2012, the director issued a request for evid.ence. The director instructed the petitioner to submit further evidence to establish "a past rec~rd ~f specific prior achievement · . with some degree of influence on the field as a wh~le."
I~ response, the petition~~ submitted an artiCle that she coauthored with and that was "published online'' in on March 30, -2012.
This article was published subsequent to the petition's July 5, f.Oll filing date. Thus, any impact resulting from this .·publication post-dates the filing of the petition. As previously discussed, eligibility must be established at the time of filing. 8 C.F.J,t §§ 103.2(b)(1), (12); Matter (~l . Katigbak, 14 I&N Dec. at 49. A petition cannot be approved ;at a future date after the petitioner becomes· eligible under a new set of facts. Matter of !Zummi, 22 I&N Dec. at 175.
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In addition, the petitioner submitted additi~nal l¢tters of support focusing on her academic accomplishments. In his· second letter dated April 13, 201~2; again discusses the. petitioner undergraduate academic·achievements stating:
[The petition ·er]' was a' recipient of Biology- Prcignim bo~ors. 'Program honors are 'restricted to two: seniors and two juniors in each program, clearly placing her in strong position relative to her p~ers in science. . · ·
. _. : . .· . I. . .
In addition, fthe: petitioner] wa.s accepted into the hationali honors organization .to which is a member: member schools are limited to selecting student§ with a·minimum cif 3.5gpa and may. only nominate lOo/o of their student. body. Faculty collectively vote upon the list of eligible students, so membership requires a student ·to sufficiently impress a sigpificant number of faculty. · . . ~ . - . Similarly, . in his secortd letter dated March 20, 2012, also comments on acad~mic recognition received . by the petitioner stating:
[The petitioner] received an · Outstanding university in May of 2009. She was . also . - .
Biology · Graduate Student Award at our nominated as the ' .
Dean's .medalist. There were 5 candidates, ar}.d this award was given to one student in each :department .: once a year. -The student . notninated for this award should qemo'nstrate dist;inguished scholarly and creative excellence in their discipline/field .. ... i .
.. . . ' . ' . \ ' ~
As previously dischssed, academic- performance, measured~ by such criteria as grade point ' ' . average, .cannot alone satisfy the national interest threshold ~ or assure substant~al prospective · national benefit. Instead, the petitioner must d.emonstrate . specific prior achievements that
- . . ' . 1 establish the alien's : ability to benefit the national interest. NYSDOT, 22 I&N Dec. at 219, n.6. The petitioner also 'submitted a letter from the Director of International Student Services and · Programs at S.tating that the petitioner received the and the .....,Exceptional ability not established
, documentation showing .that she .received a
The petitioner also submittP~ to attend the
Regarding the petitioner's student awards.· and
. membership, the AAO notes that' recognition for achievement andmemberships relate to the regulatory criteria for 'classification as an alien of exceptional ability, a classification that not'J11ally requires ~n alien employment certification. S.C.F.R. § 204.5(k)(3)(ii). The AAO cannot conclude tha.t meeting one, two; of even the requisite three criteria for classification as ai1 .. J . ' • . ' ' alien of exceptional ability w::mants a waiver of the employm~r\.t certification requirement in the national interest. Bystatute, ''exceptional ability" is not, by itself sufficient cause for a national 'interest waiver. /d:>at'218: Thus ; the bfnefit which the alien presents to his field of endeavor · must greatly exceed the "achievements and significant contributions" contemplated for that class-ification. !d.;· see also id.'. at 222'. Regardless, there is nq evidence showing that the petitioner's student membership in. _ required d:emonstrating significant research advancem~nts in her Held. Furthbt, with regard to . the p.etitibner' s other academic honors , the . ' _,- . . . . . .
I .
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Pag<:; 12
AAO notes that university study is not a field of endeavor, but rather trammg for future I employment in a field of endeavor. The petitioner's student honor~ are not an indication that she has influenced her field and they offer no meaningful comparison between the petitioner and others in the field outside of her .universities who had alread completed their graduate and undergraduate studies. ·Re!!aidim! .the oetitioner's __ there is no evidence from the showing the criteria for determining . a recipient's eligibility for this award. Moreover, the AAO cannot concluqe that the petitioner's receipt of funding to cover travel expenses to a scientific conference demonstrates a level of achieve~ent consistent with influencing the field as"a whole.
I o
The petitioner's response also included a March 27, 2012 lette~ from discussing the petitioner's work in the beginning ;in Oc;tober ·of '20 11. The petitioner's work in laboratory at . . _post -dates tli'e petition's July 5, 2011 filing date. As previous! y discussed, eligibility must be established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter qf Katigbak , 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of /zu~mi, 22 I&N Dec. at 175 .. Accordingly, the AAO will not consider res~arch conducted by the petitioner after July 5, 2011 in this proceeding. . I . .
. The director denied ·the petition finding tl:lat the petitioner faih;d to establish that a waiver of the requi.rement of an approved labor certification wol.lld be in the national interest of the United States. The director noted that while the petitioner submitted evidence · of her student ·achievements, the submitted evidence . did not show ''a past record of documented ' accomplishments" in the·field sufficient to "justify' a future benefit to the national interest." / . . . . . . . .
On appeal, the pt;!titidner submits additional documentation pertaining to her student awards, scholarships, publications in preparation, and recent activities in the field. None of this documentation demonstrates that the petitioner's past research has significantly influenced the field as a whole. ·In add:ition, the p~titiorter submits additional letters of support.
- •••states:
[The petitioner's] unique knowledge and expertise in the field of molecular biology, genomics and proteomics performance of DNA/RNA makes her an indispensable sci~ntist for the advancement of our field. - Since .she. came to our laboratory, [the . petitioner] , has erformed scientific functions as : a Clinical Laboratory Scientist at the . She is . responsible · for the development of clinical ·tests ' of HLA genqtyping . using high-throughput sequencing technologies, designing .new primer sets .for HLA genotyping for next generation sequencing and profiling drug resistance cytomegalovirus mutations cau~ing kidney transplant failure. [The·. petitioner's] unique kn()wledge and : ·expertise . in; these . fields , makes her an p. 13 indispensable Clinical Laboratory Scientist not only at ·Stanford , but-also to the national medical commu~ity .. comriients on thepetitioner ;s job functions and : resportsibiliti~s in the ·but the petitioner's work there post-dates the petition's July 5, ,2011 filing date. As previou sly discussed, eligibility must be established at' the· time of filipg. 8 C.F.R. § 103.2(b)(l), (12); _ Maiter of Katigbak, 14 I&N Dec. at 49. A petition. cannot be 'approved at a future date after the petitioner.becomes eligible · under a ne\y set of facts. Matter of /zummi, 22 I&N Dec.< at 175. Accordingly, the AAO will not con~ider the research conducted by the petitioner in the in this pr<;>ceeding: ' ·also emphasizes . the pe~itioner' s "unique knowledge and expertise in the field.". However, as previously noted, . 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-tr;1ined workers are availabie in the. U.S. is an issue under the jurisdiction of the Department of l,aboi· . . NYSDOT, 22 I&N Dec. at 221. ; . states :
Our Laboratory ~onducts essential and critical tests to determine that donor organs/bone marrow are matched in order to achieve successful transplantation a'nd long term graft · and patient survivaL .. .. These· tests are highly specialized, excellence is required, and there is zero. tolerance for errors. Consequently ; new methods being developed must pass very high standa:rds and clinical validationbefore they can be routinely employed.
[The petitioner] brings this kind of excellence and specialized skill to this highly complex and unique field. She is skilled in all areas requisite to, the success of the molecular biology testing :performed and is . U~iquely trained ·tO dyvelop and validate the 'next . generation ' seqU:encing platforms that will determine compatibility and whether the bone marrow transplant has worked. or not. Of the more than .S:o members of the Laboratory , she is one of on~y two technologists who . know how to perform the complex procedures involved and to :design new methods and material s to define donor and recipient 'type s' . I .. and. compatibility with better precision than any existing m~thod provides. : .
It is with great concem to me that dyspite several open positions advertised broaqly for the past two years. at our L,aboratory for technologists with these skills, no applicai1ts . apart from [the petitioner] have met the educational and experientlal criteria. . . ~ ' . ' . ' ' ' comments on the· petitioner's specialized skills arid the Jack of .qualified applicants for the laboratory technologist position. ·As previously discussed, training in advanced technology or unusual·knowledge; .while perhaps· attracti.ve to the prospectivy 'U.S. employer, does nQt inherently meet the national interest threshold. Id,. at 221. Further, givep that the employment certification process was designed to address the issue of worker shortages, ~· shortage of qualified workers in a given fie~d is not a persuasive argument for demonstr~ting , eligib.ility for the national interest waiver. p. 14 (b)(6)Page 1~
The issue of whether similarly-trained workers are available · in the U.S. is an issue . under the jurisdiction of the Department of Labor. /d.
. In his second letter dated June 29, 2012, the petitioner after her arrival at states: · · again comments on work erformed by
. in October 2011.
In the relatively short time she has been in the laboratory, [the petitioner's] research has focused on designing strategies for sequencing the coding regions of clinically relevant HLA genes. This is no simple task, and many others before her have beei1 unsuccessful. [The petitioner] has been successful in this effort, and she has now designed a sequencing strategy that takes advantage of novel microfluidic PCR technology 'to allow for many samples to be processed and sequenced simultaneously. In addition, she has s.ingle handedly built tpe Disease Pr_ofiling area of the laboratory, overseeing the purch~se, installation, and . daily usage of complex sequencing and PCR equipment. In general, next-.generation ~equencing equipment has only been avail;:tble in large academic genome cente~s ~nd biotechnology companies. [The petitioner] is pne of a handful of people in the United StateS who has knowledge and experience with )thistype of instrumentation in the clinical laboratory setting. .
[The petitioner] has developed a ~ next-generation seqtJencing protocol to analyze cytomegalovirus (CMV), an important viral pathogen for transplant patients. · An abstract detailing her research 91;1 CMV was r~cently submitted for:pl1blication at the Association · for Molecular ~athology annual meeting. She is also a9tively engaged in a research · project to use next-generation sequencing to better define the role of BK virus in kidney transplantation . '
As previously ' discu~sed,the petitioner's work in th:e i ,ncluding her cytomegalovirus and BK virus research, post-dates the petition's July 5, 2011 filing date . . Eligibility, however •. must be established at the till1e of filing. 8 CF.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved .at a future date after the. petitioner becomes eligible under a new set of facts~ Matter of Izummi, 22 · ~&N Dec. at 175. Accordingly, the AAO will not consider the recent . Work conducted by. the . petitioner in ,fud . , in this proceeding. also comments on · the : petitioner's knowledge and experience with PCR instrumentation. However, aspreviously no.ted, special or unusual knowledge or training does not inherently meet the national 'interest threshold. · The issue of whether similarly-trained workers are avai1able in the U.S. is an. issu~ under the j~risdibion of the Department of Labor. NYSDOT, 22 I&N Dec. at 221: .
The petitioner's appellate submission ~ncludes letters of support from and . ·
The A:AO notes that their letters contain language that is . identical or· vittually the ~arne as i11 May 16, 20 ll·letter. ' This suggests that the language in p. 15 (b)(6)Page 15
.·-. __ .... _ letters. is not tl;leir own. While it is acknowledged that have both . offered their suppOrt to this petition, it is apparent that they did not independently prepare significant portions of their. letters. Accordingly, the AAO .finds their duplicative commeilts to be ·of limited probative value. Cj · Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir .. 2006) (upholding an immigration judge's adverse credibility determination in asylum proceedings based in _part on the similarity of some of the affidavits). · .\vhile the preceding letters of SUI? Ort state that the petitioner evaluated data results for to optimjze the diagnostic protocol, there is no documentary evidence showing that the petitioner · authored or originated the discovery of this four-probe FISH assay tool for diagnosing m,elanoma . also comment that the results ·from the work were reported at the and published in but there is no documentary evidence demon strating that the petitioner's speqific findings have been frequently cited by independen~ research,ers or have otherwise_ notably -influenced the field as a. whole . . ' coauthored ~ the article with· the pet1t10ner and oth¢rs that was published in subsequent to the petition's filing date. . states: .Past record does not show influence or success
[The petitioner} has left an· indelible footprint in · the field of Plant Biotechnology, specifically in dbveloping nematode .resistant transgenic pl'ants. Ber exceptional work in this field has yi~ided ~ultiple publications, presentations ~nd awards, demon strating her exceptional research talents. It is clear that she has played. a significant role in impacting U.S. a~riculture,: in light of her work 'on plant parasitic nematodes, which affect crops in · the U.S. More recently, [the petitioner's] research endeavors have yielded a novel diagnostic test tq detect early stages of melanoma (skin cancer). · [The petitioner's] research in biomedkine has been critical to understand the regulation of-fat cell metabolism as welL This work was conducted at . .
Her work has clear relevance to a current national obesity epidemic. yomments on the pe!itioner' s published, presented, and ongoing work, but he fails to provide sgecific examples of hbw the petitioner's research findings are being applied by others in the field at a level that would justify a waiver of the job offer requirement. Further , there is no documentary evidence showing that the petitioner's work is frequently cited by independent resean~9ers or his otherwise influenced the field as _a whole. .
The above letters are from the petitioner ' s professors, supervisors, coauthors, and individuals affiliated with institutions where the petitioner has worked. While such letters are important in proviciirig d~ta:ils about the petitioner's role in various projects, they cannot by . themselves establish the petitioner's influence over the fiet'd as a whole. Moreover, simply listing the petitioner's novel res,earch findings cannot suffice in this regard, because all research scientists are arguably expect~d to produce original work. Jn the absence of evidence of publication at the p. 16 . ''I . '· ·." ~. , •'
,, Page I~ I. time of filing, the record does not show that the petitioner's worl< has corrie to the attention of other researchers outside ofher professional acquaintance~.
The petitioner's appellate submis.sion also · includes a joint letter signed by more than fifty ·of her colleagues in stating:
[The petitioner's] past accomplishments m agricJitural and biomedical research demonstrates th:at her exceptional research talents have pl ayed a significant role in u.s. agriculture ·. Most notable [the petitiqner's] research on n~matodes to prevent cell death in crops would .save the U.S. billions of dollars in crop clestruction. This research was recently published ih [The petitioner's] further research in biomedic.ine has led to .. the significant development of a new diagnostic test i~ the detection of the early stages of melm)oma and in the discrimination ' between its noh-cancerqus and cancerous forms, which greatly affects this nation's heaith care, especially millions of Americans suffering frotn cancer. · · Furthermore, [the petitioner's] research in biomedicine was a prerequisite to the . understanding of the regulation of fat cell inet£t..bolism and the process b which calories stored in fat can be released and metabolized at
Her work addresses the national health crisis Of obesity and the consequent maladies that ~rise from it: diabetes, hypertension, cardiovascular diseases, and even certain cancers. In addition, [the petitioner's] sp~cialized skill in polysome 'fractionations ~as . adapted to identify abnormal patterns . of regulation of certain non coding RNA CnoRNA) and microRNA genes to determine the aggressiveness of metastatic melanoma. This 'is a novel discovery with diagnosis and therapy applications ih other types of cancers . . . .
Currently, [the petitioner]' is . conducting research at· which demonstrates her future benefit to the national interest. [The petitioner's clinical research is currently focused on designing and validating novel diagnostic assays to determine pre~transplant organ c~mpatibility and mon\tor antibody mediated organ · rejection : This research is to develop and validate novendiagnostic test methods using new next generation DNA sequencing technology to improve patient care through more . rapid and accurate sequencing of HLA genes .
. T_he oetitioner 's colleagues state that she published . an article in in As previously discussed, this article ·was published subsequent to the petition's July 5, 2011 filing date. Thus, any impact resulting from this publication post -dates the filing of the petition. Eligibi ,Iity must be established at the· time of filihg. 8 C.F.R. §§ 103.2(b )(1 ), ( 12); Matter of Katigbak , , 14 I&N Dec. at 49. A petition cannot be <approved at ·a futui·e date after ·the petitioner becomes eligible l.lnder a new· set of facts. Matter oflzummi, 22 I&N Dec. at 175 . . The petitioner's colleagues also assert that the petitjoner' s work has "led to the significant development of a new diagnostic test ih the detection of the early stages of melanoma and in the discrimination between its non-cancerous and cancerous fonius," but there is no documentary evidence showing that thepetitioner authored or originated the'discovery of this four-probe FISH p. 17 (b)(6)Page 17 assay tool for diagnosing melanoma . The petition~r's colleagues. further state that the petitioner's , "research in I biomedicin~.' was a prerequisite to the ;understanding ofthe regulat!on of fat cell metabolism and the process by which calories stored in-fat" and'that her work "to identify abnormal -patterns of regulation of certain non-coding RNA (noRNA) and microRNA genes to determine the aggressiveness ofmetastatic melanoma" is "a nqvel discovery," but her colleagues . fail to provide specific ex~mple_s of how the petitioner workl is being applied by others in the . medical field. Further, there is no documetitary evidence showing that the petitioner's work is ·frequently cited by-independent researchers or has otherwise influenced the field as a whole . · ln addition, the pet-itioner's colleagues 'comment on her ·recel)t wqrk at but the petitioner's \vorl<· there post-dates : the ·petition's July 5, 2011 filing date. As previously discuss_eq, eligibility must be established at the tim~ of filing. 8 c;:.F.R. § 103.2(b)( 1), (12); Matter of Katigbak, 14I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes eligible under a n~w set _of facts. Matter of /zummi, 22 I&N Dec. at 175. Accordingly, the AAO. will not consider 'the research cond~ct~d by the petitioner in the HIDPL in this proceeding . · . · ·
The opinions of experts in the field are not without weight and have been considered above. USCIS may, in its discretion, use.as advisory opinions statem~nts submitted as expert testimoqy . See Matter of Car01i International, 19 I&NDec. 791, 795 (Coinm'r. 1988). However; USCIS is ultimately respo.nsiblefor making the final determination reg4rding an alien's eligibility for the. benefit sought. IdJ · The submission of. letters' from experts supporting the petition is not presumptive evid~nce of eligibility; USC IS may evaluate the content . of those letters as to whether they support the alien's eligibility . See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus; the content of the experts' .statements and ho~ they l:i,ecame aware of the petitioner's reputatio.n are important considerations. Even whe'n written by independent experts, letters soli~ited by an alien in support of an immigration ~ petition are of less weight than . preexisting, independent evidet:J.c~ that one would expect oL a biological researcher who has influenced the field as a whole. .
While petitioner has performed admirably. on the research pr&jects 'to which she was ·assigned, she has not established that her past rec;ord of achievement ;is at a level that would justify a waiver of the job ~ffer requirement which, bylaw, normally. attaches t~ the visa classification sought by the pe,titioner. The A,J\0 notes that the petitioner ~eed not demonstrate notoriety on . the scale of national: acclaim, butthe national interest waiver contemplates ~hat her influence be national in scope. NYSDOT, 22 I&N Dec._ a:t ~17 n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of endeavor_;, /d. at 218. See also id. at 219 n.6 (the alien must have: "a past history of demonstrable achievem'ent with some degree 0f influence on the field as a whdle.'') · · .
As is clear from a plain reading. of the statute, it was not the intent of Congress thin every alien of exceptional ability should be exempt from the requirement of a job offer based on national interest. Likewise; it does not :appear to have been tl)e Intent of Congress to grant national interest waivers on the basis of the overail importance of a given occupation, rather than on the merits· of the individual alien. On·the basis of the .evidence submitted, the petitioner has not established that a waiver of the p. 18 ' . Page. IS
·t
I
. i requirement · of an appr~ved alien employment certification will. be in the national intetest ~f the United States. ' ' ·
The burden o{ proof. iri these proceedings rests solbly with tpe petitioner. Section 291 of the Act, 8 U .S.C. § 1361. The petitioner has not sustained. that burden.
ORDER:. The appeal is dismissed.