dismissed EB-2 NIW Case: Cardiology

identifying data deleted to 
prevent clearly unwarrantec 
invasion of personal pri vacj 
PVBLlC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Lsuc 
2 Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153@)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a physician - cardiology. 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 classification as an alien of exceptional ability or a member of the 
professions holding an advanced degree, but found 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, counsel submits a brief. For the reasons discussed below, the petitioner has not established 
his eligibility for the benefit sought. 
Section 203@) 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 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. 
It appears from the record that the petitioner seeks classification as an alien of exceptional ability. This 
issue is moot, however, because the record establishes that the petitioner holds a medical degree from 
Madras Medical College. 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 the phrase, "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. 5 5, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
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 
benefit7' [required of aliens seeking to qualifl as "exceptional."] The burden will rest 
with the alien to establish that exemption fkom, 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 Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Cornrn'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id at 2 17- 18. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of hture benefit to the national 
interest. Id. 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 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. Id 
The director concluded that the petitioner works in an area of intrinsic merit, cardiology and we 
concur. Given that counsel and several of the references stress the merit of this field, we emphasize 
that the intrinsic merit of the field is only the first factor that must be considered. The director also 
did not contest that the proposed benefits of the petitioner's work, improved treatment of cardiac 
patients, would be national in scope. While we will also not contest this issue, it bears mention that 
simply working as a cardiologist would not meet the national scope requirement. Matter of NYSDOT 
states: 
[Tlhe analysis we follow in "national interest" cases under section 203(b)(2)(B) of the 
Act differs fiom that for standard "exceptional ability" cases under section 203(b)(2)(A) 
of the Act. In the latter type of case, the local labor market is considered through the 
labor certification process and the activity performed by the alien need not have a 
national effect. For instance, pro bono legal services as a whole serve the national 
interest, but the impact of an individual attorney working pro bono would be so 
attenuated at the national level as to be negligible. Similarly, while education is in the 
national interest, the impact of a single schoolteacher in one elementary school would 
not be in the national interest for purposes of waiving the job offer requirement of 
section 203(b)(2)(B) of the Act. As another example, while nutrition has obvious 
intrinsic value, the work of one cook in one restaurant could not be considered 
sufficiently in the national interest for purposes of this provision of the Act. 
While cardiac treatment as a whole serves the national interest, using the reasoning quoted above, the 
impact of a single cardiologist at the national level is negligible. Significantly, Congress is presumed 
to be aware of existing administrative and judicial interpretation of statute when it reenacts a statute. 
See Lorillard v. Pons, 434 U.S. 575, 580 (1978). In this instance, Congress' awareness of NYSDOT 
is a matter not of presumption, but of demonstrable fact. In 1999, Congress amended section 
203(b)(2) of the Act in direct response to the 1998 precedent decision. Congress, at that time, could 
have taken any number of actions to limit, modify, or completely reverse the precedent decision, 
such as by applying the waiver to all physicians practicing in a complicated specialty. Instead, 
Congress let the decision stand, apart from a limited exception for certain physicians working in 
shortage areas, as described in section 203(b)(2)(B)(ii) of the Act. The petitioner does not seek a 
waiver under this provision. Because Congress has made no further statutory changes in the decade 
since NYSDOT, we can presume that Congress has no further objection to the precedent decision. 
Nevertheless, the petitioner is involved in ongoing clinical research that he publishes and presents at 
conferences. There is no evidence that he seeks to abandon his clinical research to work solely as a 
physician. Thus, we are satisfied that the proposed benefits of his research would be national in 
scope. 
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. Counsel and several 
references discuss the complicated nature of cardiology and assert that the petitioner's ability to 
perform the complex duties of a cardiologist warrant a waiver of the job offer requirement in the 
national interest. The ultimate consequence of this argument, however, is a blanket waiver for all 
well trained cardiologists. It is the position of U.S. Citizenship and Immigration Services (USCIS) to 
grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers for entire 
fields of specialization. Id. at 2 17. 
While we do not question the importance of a sufficient pool of well trained of cardiologists to 
health in the United States, 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. NYSDOT, 22 I&N Dec. at 21 8. 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 22 1. 
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 petitioner completed a research fellowship in Neurology at the Kennedy Krieger Institute, Johns 
Hopkins University fiom 2001 through 2002, after which he joined the Rosalind Franklin University, 
Chicago Medical School where he remained as of the date of filing. 
The petitioner submitted committee membership appointments, job appointments, professional 
certification, generic letters soliciting manuscripts fiom the petitioner that appear to be issued to any 
recent author in the field, routine work-related electronic mail messages that appear commensurate with 
the petitioner's position, correspondence expressing appreciation for past presentation, reprint requests, 
the petitioner's medical exam and training course scores and acceptance into a fellowship (residency) 
program. None of this evidence is indicative of a track record of success with some degree of influence 
on the field as a whole. 
The petitioner also submitted his research grants, a presentation selected by the American Heart 
Association (AHA) for inclusion in the association's "The Best of Scientific Sessions 2007" satellite 
broadcast, a travel grant from the American College of Physicians, First Place in the 30" Annual 
Associates Clinical Vignette Competition, selection as one of the top five winners at the Chicago 
Medical Society's Poster Presentation Session and selection for the "Professionalism Award" for 
service to patients at Rosalind Franklin University of Medicine and Science where the petitioner is 
employed. 
Research grants simply fund a scientist's work. Every successful scientist engaged in research, of 
which there are hundreds of thousands, receives funding from somewhere. Obviously the past 
achievements of the principal investigator are a factor in grant proposals. The funding institution has to 
be assured that the investigator is capable of performing the proposed research. Nevertheless, a 
research grant is principally designed to fund future research, and is not, by itself, indicative of with the 
investigators past influence in the field. The satellite broadcast, while increasing the petitioner's 
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exposure, is not necessarily indicative of his ultimate influence. The remaining distinctions appear 
limited to those just beginning their career or are local. Regardless, this evidence relates to one of the 
criteria for aliens of exceptional ability, 8 C.F.R. 5 204.5(k)(3)(ii)(F), a classification that normally 
requires an approved alien employment certification. We cannot conclude that meeting one criterion, 
or even the requisite three criteria for a classification that normally requires an approved alien 
employment certification warrants a waiver of that requirement. NYSDOT, 22 I&N Dec. at 21 8. 
In addition, the petitioner submitted his "professional" membership in the AHA, his membership in 
Sigma Xi and his "fellow in training" membership with the American College of Cardiology (ACC). 
Once again, this evidence falls under one of the eligibility criteria for aliens of exceptional ability, 
8 C.F.R. 5 204.5(k)(3)(ii)(E). As this classification normally requires an approved alien employment 
application, we cannot conclude that evidence relating to two of those criteria, or even the requisite 
three required to demonstrate exceptional ability, warrants a waiver of the alien employment 
certification process in the national interest. Id. 
an assistant professor at Johns Hopkins University School of Medicine, asserts that the 
petitioner made significant contributions to the field of pediatric neurology. while identifies 
the petitioner's neurology projects at Johns Hopkins, he does not provide the results of these projects or 
explain how they have impacted the field. While the petitioner presented this work, the record contains 
no evidence of the influence of these presentations. It does not appear that the petitioner published any 
articles on neurology. In discussing the petitioner's publications, references the petitioner's 
more recent work in nephrology and cardiology. 
The petitioner's supervisor at Rosalind Franklin University, concludes only that the 
petitioner has potential. Specifically, he states that the petitioner "is headed for a position of great 
expertise and extraordinary contributions in the field of his practice, cardiology," and that he is "in line 
to become one of the premier cardiovascular specialist[s], both in this area and in the United States." 
discusses the importance of the petitioner's field, cardiology, and the shortage of cardiologists 
in the United States. We have already acknowledged the substantial intrinsic merit of the petitioner's 
field. The issue of whether similarly-trained workers are available in the U.S. is an issue under the 
jurisdiction of the Department of Labor. Id. at 221. 
further asserts that the petitioner's studies are important, but does not explain how they have 
already influenced the field of cardiology. Rather he s eculates that the petitioner's research "has a 
direct impact on the future of this field." Finally, & asserts that the petitioner performs "many of 
the complex clinical procedures in cardiology placing him amongst the very elite class of physician 
scientists." The fact that the petitioner, a trained cardiologist, can perform cardiology procedures that 
set him apart from other physicians in general, the majority of whom work within one of the other 
numerous medical specialties, is not an argument for waiving the alien employment certification 
process, which is designed to determine whether there are available qualified U.S. workers. 
, an assistant professor of neurology at Harvard Medical School, pworts to be an 
independent reference but his curriculum vitae reveals that his time at the Kennedy Krieger Institute 
overlapped with the petitioner's employment there. discusses the importance of cardiology 
and the-need for cardiologists in the united States. Once again, we do not contest this point. It would 
appear that these assertions pertain to any medical specialty. We are not persuaded that the petitioner's 
decision to work in one of the many complicated and important medical specialties that exist qualifies 
him for waiver of the alien employment certification process as stated above, it is the position of 
USCIS to grant national interest waivers on a case-by-case basis, rather than to establish blanket 
waivers for entire fields of specialization. Id. at 2 17. 
asserts that the petitioner is among the ten percent of cardiologists that can perform 
angiograms and while concedes that the vast majority of cardiologists are able to utilize the 
standard EKG diagnostic technique, whose specialty is neurology, asserts that the petitioner 
has mastered "numerous diagnostic modalities that less than one percent of cardiologists perform." 
does not assert that the petitioner pioneered these techniques. The petitioner's training in 
techniques developed by others would appear amenable to enumeration on an application for alien 
employment certification. Regardless, implication that the 99 percent of cardiologists are 
incapable of performing the diagnostic modalities in their specialties required to save lives (and are thus 
essentially unqualified to perform their jobs) warrants some objective supporting evidence such as a 
government report, which is conspicuously lacking in this case. 
further notes that the petitioner's articles have appeared in widely disseminated journals. 
We will not presume the significance of an article from the journal in which it appears. Rather, it is the 
petitioner's burden to demonstrate the significance of the individual article. does not 
rovide any examples of the petitioner's work being applied by independent cardiologists. s in all^,= 
& speculates as to the future significance of the petitioner's current projects. As these projects are 
still ongoing, they cannot serve as evidence of the petitioner's influence as of the date of filing, the date 
as of which he must establish his eligibility. See 8 C.F.R. $8 103.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. 4.5'49 (Reg'l. Comm'r. 1971). 
a physician at the Mayo Clinic, asserts that he was asked to review the 
petitioner's credentials and is basing his letter on this review and the petitioner's "stellar reputation in 
the field." does not expressly state that he had ever heard of the petitioner or his work 
prior to being contacted for a reference letter. discusses the importance of cardiology 
and the competitive nature of the medical school attended by the petitioner. This information is not 
relevant to whether or not the petitioner enjoys national or international acclaim in the field of 
cardiology. asserts that the petitioner's influence can be seen by the petitioner's 
selection to teach students and resident trainees, give Journal Club presentations and grand round 
lectures at the institution where he is employed. While asserts that only an expert 
cardiologist would be selected for these duties, the petitioner's supervisor, does not suggest 
that these duties were uniquely assigned to the petitioner as opposed to being the routine duties of 
experienced physicians at the hospital. Regardless, the internal training of subordinates does not have 
an impact which is national in scope. NYSDOT 22 I&N Dec. at 217, n.3.  ina all^,- 
asserts that the petitioner's national and international acclaim evidences the petitioner's widespread 
impact in the field. This statement is inherently circular and does not help demonstrate the 
actual impact. 
, an associate professor of clinical medicine at the Weill Medical College of 
Cornell University, does not explain how he came to know of the petitioner's work. - 
a specialist in nephrology, states that the petitioner is "one of the cardiologists specializing in coron 
vascular disease (CVD), a subspecialty for which there is a tremendous need today." Once again, if ah 
is implying that the majority of cardiologists are not trained to diagnose and treat CVD, 
which causes 25 million deaths annually according to such an implication requires 
strong supporting evidence. 
asserts that cardiology is one of the most demanding subspecialties of internal 
medicine. We reiterate that the fact that there are numerous medical specialties such that every 
specialist has skills "most" physicians lack because the ursued other s ecialties is not persuasive. 
The appropriate comparison is with other cardiologists. -asserts that the petitioner's 
experience in nephrology distinguishes him from other cardiologists. This experience is "crucial," 
according to because heart disease in kidney failure patients presents complex 
challenges that the petitioner, with his past experience in nephrology, can "seamlessly manage." 
- provides no examples of cardiology research that the petitioner was only able to 
complete based on his nephrology experience. Regardless, multidisciplinary training, while useful, 
cannot justifl a waiver of the alien employment certification process. Id. at 22 1. 
. discusses the petitioner's nephrology research on HIV ne hro athy, the most 
common cause of end stage renal failure among patients with HIV.  explains that the 
petitioner demonstrated that anti-retroviral therapy leads to not only a slowing of the disease but also 
reverses the kidney damage that had already occurred. asserts that the petitioner's 
results, which were published in 2005, have "international importance leading to a paradigm shift in the 
management of HIV associated nephropathy, a disease that affects millions of patients all over the 
world." While the petitioner submitted evidence that this work had been minimally cited as of the 
filing date, the citations are not at a level consistent with a "paradigm shift." ~i~nificantl~,m 
hr 
who does not even expressly state that he knew of the petitioner's HIV associated 
nep opathy research prior to being contacted for a reference, does not assert that this disease is treated 
differently at the Weill Medical College based on the petitioner's publication. 
The petitioner submitted his articles and presentations, evidence of minimal citation of individual 
articles by the petitioner and an article posted at Diabetesincontrol.com discussing the petitioner's 
recent presentation but concluding that "despite the researchers' enthusiasm, the results were suggestive 
rather than confirmatory." The petitioner also submitted the same article posted at MedPage Today. 
The number of citations is not consistent with contributions of major significance. Moreover, the 
citations themselves do not single out the petitioner's work as significant. For example, the 
review article on Renal Immunology and Pathology in Current World Literature cites the petitioner's 
work but does not notate it as "of special interest" or "of outstanding interest." In addition, an article in 
AIDS cites the petitioner's work as one of multiple articles for the proposition that "several 
observational cohort studies have demonstrated a decreased need for renal replacement therapy for 
patients treated with antiretroviral therapy." The other article cited for this proposition predates the 
petitioner's work. As another example, a 2006 article in The American Journal of Medical Sciences 
cites the petitioner's work as one of nine for the proposition that renal biopsy is recommended where 
feasible to determine the cause of renal disease in HIV positive patients. Finally, a letter to the editor in 
Respiratory Medicine cites the petitioner's work as one of four articles for the proposition that beta- 
agonists can provoke sudden death in asthmatics. 
While the petitioner's research clearly has practical applications, it can be argued that any research, 
in order to be published or accepted for presentation, must offer new and useful information to the 
pool of knowledge. It does not follow that every researcher working with a grant producing 
publishable results inherently serves the national interest to an extent that justifies a waiver of the job 
offer requirement. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, 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 profession, 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 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. 8 136 1. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.