dismissed EB-2 NIW Case: Cardiology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-A-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 25, 2015 
PETITION: I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician and researcher in the field of cardiology, seeks classification under section 
203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member ofthe 
professions holding an advanced degree, and 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, 
Texas Service Center, denied the petition. The matter is now before us on appeal. The appeal will 
be dismissed. 
I. LAW 
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) Subject to clause (ii), 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. 
(ii) The Attorney General shall grant a national interest waiver pursuant to clause (i) 
on behalf of any alien physician with respect to whom a petition for preference 
classification has been filed under subparagraph (A) if-
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Matter of K-A-
(I) (aa) the alien physician agrees to work full time as a physician in an area or 
areas designated by the Secretary of Health and Human Services as having a 
shortage of health care professionals or at a health care facility under the 
jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in any State has 
previously determined that the alien physician's work in such an area or at such 
facility was in the public interest. 
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, 101st Cong., 1st Sess., 11 (1989). 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the beneficiary seeks employment in an 
area of substantial intrinsic merit. !d. at 21 7. Next, a petitioner must establish that the proposed benefit 
will be national in scope. !d. Finally, the petitioner seeking the waiver must establish that the 
beneficiary will serve the national interest to a substantially greater degree than would an available U.S. 
worker having the same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the beneficiary's past record justifies projections of future benefit to the national interest. Id. at 
219. The petitioner's assurance that the beneficiary will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The term "prospective" is included here to require 
future contributions by the beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
II. PERTINENT FACTS AND PROCEDURAL HISTORY 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on February 21, 2014, at 
which time he was working as a cardiology fellow at the · in New York. In an 
accompanying introductory statement, the Petitioner indicated that his current and prospective work 
involves both clinical practice and medical research in the field of cardiology. The Petitioner stated 
that his research "is having a widespread impact on the quality of medical care across the United 
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States, leading to improved treatment modalities and greater insight into challenging medical 
conditions." 
The record indicates that, at the time of filing the Form I-140, the Petitioner had authored or co­
authored several conference presentations and two published journal works, consisting of an article 
and an abstract from a conference presentation, both published in 2011. The Petitioner submitted 
letters of recommendation from current and former supervisors and colleagues, as well as from 
independent professionals in his field, attesting to his expertise in clinical settings and the 
significance of his medical research. 
In a January 6, 2014, letter, Program Director for Cardiovascular Disease at 
described a research project in which the Petitioner, by examining viability 
studies on patients with ischemic cardiomyopathy, found treatment using cardiac magnetic 
resonance imaging (MRI) to be as sensitive as the more expensive positron emission tomography 
(PET). His results, an article entitled were published 
in the . stated, "I believe this article provides valuable 
insight that can be applied in health care facilities across the nation," and that the Petitioner's 
research has the potential to reduce national health care costs. 
The Petitioner also submitted a December 4, 2013, letter from Program Director 
for the at the 
previously served as an Assistant Professor of medicine at the during the 
Petitioner's residency, and was a co-author of the petitioner 's presentation, 
the abstract of which was published in the 
stated that the Petitioner was the "primary researcher" on this study, which 
was "the first study to evaluate the current standards for ordering troponin level testing" after a 
patient presents with chest pain. He also stated that the Petitioner and his team "are working on 
developing a strategy to help reduce the costs associated with this test without compromising its 
effectiveness." asserted that this study "has already garnered a great deal of interest in 
the medical community ," as evidenced by its publication in a "very prestigious journal " and 
acceptance for presentation at an conference. In addition, 
indicated that the "has asked for the data in order to add it to 
their own data," and is interested in conducting a collaborative research project with the Petitioner 
on the subject. states that the _ interest in the Petitioner's research is 
"[a]nother demonstration of the geographical reach of [the Petitioner ' s] work." 
In a February 7, 2014, letter, a hospitalist at 
described a study in which the Petitioner evaluated the effects of adding 
proton pump inhibitors to clopidogrel in stroke patients. stated that the Petitioner 's 
findings have "profound" implications, and "can play a substantial role in helping physicians avoid 
future negative consequences from their treatment plans." He further stated that the study "was 
presented at a national conference at the in 2012," and "won an 
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award for the best research presented at this conference." While the record does not include 
evidence of such an award, the Petitioner submitted evidence that the referenced presentation, which 
he co-authored, was selected as one often "Podium Presentations" to be given at the conference. 
stated, "The fact that [the Petitioner] is routinely invited to share the results of his work and 
the fact that he has presented his research to his peers at a number of professional conferences is a 
demonstration of both his exceptional ability and the fact that his work is having a national impact." 
Chairman of Cardiology at 
stated in a December 20, 2013, letter that the Petitioner "often has the oppmiunity to 
provide other physician[s] with guidance on some of the most challenging medical issues." As an 
example, described an instance in which the Petitioner and his colleagues successfully 
diagnosed and treated a rare disease called and then delivered a presentation at an 
annual conference . stated that sharing this case report 
constituted "a substantial contribution to the medical profession 's understanding of this rare and 
potentially fatal condition." 
is a Senior Staff Physician in Advanced Heart Failure and Transplant Cardiology at 
where the Petitioner worked as a hospitalist from July 2012 to June 
2013. In a December 11 , 2013, letter, described research on diastolic heart failure that the 
Petitioner performed, in which he found an association between vitamin D deficiency and 
enlargement of the left atrium of the heart. stated that, because vitamin D deficiency is easy 
to treat, "the results of[the Petitioner's] research will surely have a great benefit." She characterized 
this research is "an example of important research that [the Petitioner] has done that has the potential 
to be applied to improving the quality and efficiency of measures to prevent heart disease." The 
Petitioner did not submit evidence indicating that he had published or presented the research 
described by 
Director of Cardiology at New York, 
stated in a December 16, 2013, letter that the Petitioner's work "has had a meaningful impact on 
research and clinical work in cardiology in the United States," and that his research "has the 
potential for reducing unneeded medical procedures " and thus reducing health care costs . As an 
example, described research that the Petitioner conducted regarding the use of 
angiograms, in which he confirmed previous, older findings that a normal angiogram has a good 
prognostic value in predicting cardiac events relative to the more expensive coronary angiogram. 
The Petitioner did not submit evidence indicating that he published or presented this research. 
In addition to discussing the petitioner's research as noted, each of the above letters described the 
petitioner's clinical expertise, including his skills in performing complex medical procedures. 
Several of the letters described a shortage of cardiologists in the U nited States, and the Petitioner 
submitted media articles addressing that issue. 
The Director issued a request for evidence (RFE) on September 11, 2014, requesting evidence to 
establish "a past record of specific prior achievement with some degree of influence o n [the 
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Petitioner's] career field as a whole." The Director requested evidence demonstr ating the 
significance of the Petitioner 's contributions, and documentation that his work being implemented 
by others in the field. 
In response to the RFE, the Petitioner submitted documentation regarding his recent research 
projects and presentations , evidence demonstrating that he served as a reviewer for medical journals, 
and an excerpt from the Fall 2014 course catalog listing the petitioner as a 
"Preceptor" in cardiology. In a November 24, 2014, letter responding to the RFE, the Petitioner 
stated that he "is performing services that are beyond the normal scope of the duties of a professional 
in his field and position. " The Petitioner stated that, in addition to "engaging in new, 
groundbreaking research," he is sharing his research results through presentations, reviewing 
manuscripts, and teaching medical students. 
The Petitioner also submitted a November 21, 2014, letter from Director of 
Advanced Cardiovascular Imaging Services at the stating that the Petitioner 
"has been steering a ground-breaking research" regarding vulnerability to atherosclerosis. 
stated that the Petitioner played a critical role in the grant application process for the study, 
and that he "will present his new data in the national as well as international scientific conferences 
and will publish his research accomplishments in the scientific journals." 
The Director denied the petition on February 20, 2015, finding that the petitioner had not established 
sufficient impact and influence on his field to meet the third prong of the NYSDOT national interest 
analysis. On appeal, the Petitioner contends that his previously submitted evidence establishes his 
eligibility for the benefit sought. 
III. ANALYSIS 
As stated above , the analysis set forth in NYSDOT requires a petitioner to demonstrate that he or she 
will serve the national interest to a substantially greater degree than would an available U.S. worker 
having the same minimum qualifications. To do this, a petitioner must establish "a past history of 
demonstrable achievement with some degree of influence on the field as a whole." I d. at 219, n. 6. 
The Petitioner has stated that his influence on his field is established by the fact that he has presented 
his research findings in publications and at conferences. Presentation or publication of his work 
demonstrates that the Petitioner's research findings were shared with others and may be 
acknowledged as original based on their selection to be presented or published, but it does not 
establish that those findings have had an impact on the field. The Petitioner did not present 
documentary evidence showing, for instance, that his presented work has resulted in medical 
advances that have been implemented at a number of hospitals, that his work has been frequently 
cited by independent researchers , or that his findings have otherwise influenced the field as a whole. 
Many of the submitted letters describe the potential of the Petitioner 's research findings to reduce 
national health care costs by improving the cost efiectiveness of medical testing and treatment. 
However , while several letters include general statements that the Petitioner is having an impact on 
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his field, they do not state that his findings are being widely implemented, nor do they provide 
specific examples of how the Petitioner's work has impacted the field of cardiology. For these 
reasons, we find the evidence insufficient to demonstrate that the petitioner has had some degree of 
influence on the field as a whole. 
Regarding the previously noted assertions and evidence about the shortage of cardiologists in the 
United States, the unavailability of qualified U.S. workers is not a consideration in national interest 
waiver determinations because the labor certification process is already in place to address such 
shortages. NYSDOTat 218. The issue ofwhether similarly-trained workers are available in the U.S. 
is an issue under the jurisdiction of the U.S. Department of Labor through the labor certification 
process. I d. at 221. Section 203(b )(2)(B)(ii) of the Act describes an alternative waiver for certain 
physicians who agree to work in an area designated by the Secretary of Health and Human Services 
as having a shortage of health care professionals or at a health care facility under the jurisdiction of 
the Secretary of Veterans Affairs. To qualify for that waiver, it is not sufficient for a petitioner to 
submit evidence regarding a shotiage of physicians in his or her field of practice. Rather, the waiver 
is limited to certain physicians who follow specific requirements set forth in the regulation at 8 C.F.R. 
§ 204.12. The Petitioner has not addressed or attempted to meet these regulatory requirements. 
IV. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. While the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the national interest waiver contemplates that his influence be national in 
scope. NYSDOT at 217, n.3. More specifically, the petitioner "must clearly present a significant 
benefit to the field of endeavor." Id. at 218. See also id. at 219, n.6 (the alien must have "a past 
history of demonstrable achievement with some degree of influence on the field as a whole"). 
Considering the letters and other evidence submitted , the petitioner has not established by a 
preponderance of the evidence that a waiver of the requirement of an approved labor certification will 
be in the national interest of the United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fK-A-, ID# 13964 (AAO Sept. 25, 2015)