dismissed EB-2 NIW Case: Cardiology

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OCT 2 9 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
rl~~;!~~trativc Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We will dismiss 
the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician specializing in cardiology. The petitioner has been in 
training at the Hospitals and Clinics, first as a resident and now as a fellow. The 
petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, 
is in the national interest of the United States. The director found that the petitioner qualifies for 
classification as a member of the professions holding an advanced degree, but that the petitioner 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, the petitioner submits a statement and additional 
evidence regarding his ongoing work in his 
field. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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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, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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 cl_early 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep't 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 alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. 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 alien 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 alien's past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien 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 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. !d. 
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, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on January 10, 2013. An 
accompanying introductory statement indicated that the benefit from the petitioner's work is national 
in scope because: 
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His role as a specialist extends beyond merely attending to a small community of 
patients or a particular research setting. 
He has had his work published in journals and presented at conferences that are national 
and international. ... 
In terms of his clinical work, [the petitioner] frequently treats patients on referral. 
Because he is able to perform such advanced medical and diagnostic procedures that 
only a very small percentage of his peers are able to perform, he is among the top in his 
field. In addition, he is constantly teaching the use of the skills to both junior and even 
senior peers. As such, he is creating a ripple effect that is making the performance of 
these procedures more widespread nationally. 
Further, [the petitioner's] peer-review activities for nationally and internationally 
circulated journals are national in scope. Through this role he helps ensure that no false 
or redundant information is transmitted to readers, who are practicing physicians and 
thereby he protects the patients. 
Publication and presentation of scientific research produce benefits that are national in scope because of 
the dissemination of useful new information to the wider scientific community. Therefore, the 
petitioner's occupation meets the "national scope" prong oftheNYSDOT national interest test, provided 
that the petitioner continues to perform research. If those research activities are limited to his ongoing, 
but temporary, training, then there will be no prospective benefit from future research once that training 
is complete. 
The petitioner's teaching duties likewise appear to be a function of his temporary role as a fellow at a 
teaching hospital, and the assertion of a "ripple effect" from passing on "advanced medical and 
diagnostic procedures" would persuade only if the petitioner himself originated or significantly 
improved those procedures. If the procedures existed before the petitioner learned them, and fellows 
pass them along to newer students as a matter of routine, then it is arbitrary to attribute the "ripple 
effect" to the petitioner rather than to the mentors who taught those procedures to the petitioner. 
The introductory statement addressed the labor certification issue: 
Please note that [the petitioner] has extensive responsibilities as both a clinician and 
as a medical researcher. However, his contractual services encompass clinical work 
only. This is customary in the profession. Virtually all academic researchers who are 
not yet permanent residents are not reimbursed contractually for any research work 
that they may perform. Furthermore, since the Department of Labor does not allow 
for a combination of occupations when filing a labor certification, such a combination 
is not possible. A very significant percentage of the patients that [the petitioner] 
treats receive Medicare Medicaid [sic]. His outstanding diagnostic abilities allow him 
to diagnose these patients at earlier stages of their illness then [sic] the large majority 
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of his colleagues would be able to. This saves the federal government a great amount 
of money because the need for later much more expensive and often invasive 
procedures is avoided .... 
[The petitioner] is very well-known for his diagnostic ability. He is also known for 
his ability to deal with tremendous efficiency and precision in emergency situations 
where there is literally no margin for error and not a minute to waste. 
The petitioner submitted no evidence to support the above claims. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft 
ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
There is no blanket waiver for physicians who treat patients on Medicaid and/or Medicare, and the 
petitioner has submitted no evidence to show that his work has resulted in nationally significant savings 
in Medicaid or Medicare costs. The assertion that other doctors would make poorer or later diagnoses, 
resulting in greater costs, amounts to unsupported speculation. 
Regarding the claim that "the Department of Labor does not allow for a combination of occupations 
when filing a labor certification," the Department of Labor regulation at 20 C.F.R. § 656.17(h)(3) 
states: 
If the job opportunity involves a combination of occupations, the employer must 
document that it has normally employed persons for that combination of occupations, 
and/or workers customarily perform the combination of occupations in the area of 
intended employment, and/or the combination job opportunity is based on a business 
necessity. Combination occupations can be documented by position descriptions and 
relevant payroll records, and/or letters from other employers stating their workers 
normally perform the combination of occupations in the area of intended 
employment, and/or documentation that the combination occupation arises from a 
business necessity. 
The quoted regulation shows that "a combination of occupations" is acceptable under certain 
specified conditions. Furthermore, the record indicates that a combination of clinical, teaching and 
research duties is customary for medical school faculty members. The petitioner has not shown that 
the Department of Labor will not approve labor certification applications for medical school faculty 
positions. 
The petitioner submitted several letters with the petition. Dr. clinical professor at 
the called the petitioner "a highly 
respected cardiologist, who has attained a superior level of proficiency in highly complex diagnostic 
procedures." Dr. is one of several writers who provided details about the petitioner's 
treatment of an individual patient, in order to establish his clinical skills. 
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Dr. 
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a professor at the stated: 
[The petitioner's] esteem in the field is founded on his exceptional clinical work and 
research on complex cardiac disorders. His research work has been published in 
leading journals such as the , and other eminent 
researchers have cited his work. 
Dr. now an assistant professor at the 
received his education and training from the same sources as the petitioner, having studied at the All 
and, later, served a residency and fellowship at the 
Dr. stated that the petitioner's "landmark research on the 
effectiveness of various syncope (or fainting) treatments is particularly significant," and he provided 
technical details about that research, concluding: "The significance of [the petitioner's] research is 
apparent in his numerous publications and presentations throughout the world." 
Dr. , director of cardiology at called the petitioner "a superb 
cardiologist who is able to perform highly advanced diagnostic and therapeutic cardiac procedures," 
and "is nationally recognized for his research in the field of cardiology." Dr. did not comment 
on the petitioner's research except to identify 
some of the journals and conferences where the 
petitioner has published or presented his work. 
Dr. , professor at the stated that the petltwner "has 
expertise that other cardiologists lack," and "has published findings ... in the most innovative 
procedures in the field of cardiology." Like Dr. Dr. praised the petitioner's research 
without describing it or its impact on the field. 
Dr. , professor at the stated that "one of [the petitioner's] most 
exceptional contributions to the continued advancement of the field of cardiology is his meta­
analysis work on syncope (or fainting)" which appeared in the 
Dr. asserted that there is a "recognized shortage of cardiologists who practice research." 
The petitioner also submitted an article about "the Section 
203(b )(2)(B)(ii) of the Act has special waiver provisions for physicians in designated shortage areas. 
The regulations at 8 C.P.R. § 204.12 spell out the requirements for that waiver. The petitioner has 
not submitted the specialized evidence required to qualify for the physician shortage waiver. 
General evidence of a shortage in the petitioner's field is not sufficient to qualify him for the waiver 
under NYSDOT because such a shortage would tend to be a favorable factor in the labor certification 
process, if the petitioner were to receive a permanent job offer that involved both clinical care and 
research. See NYSDOT, 22 I&N Dec. at 218. 
Several of the letters referred to multiple citations of the petitioner's published work. The petitioner 
did not submit evidence to show that his published work has earned a high number of citations in the 
context of his specialty. 
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The petitioner submitted copies of his published and presented work, solicitations from recruiters, 
evidence of peer review activity and the petitioner's evaluations of students. The petitioner did not 
establish that these activities distinguish him from other fellows at teaching hospitals. 
The director issued a request for evidence on July 3, 2013, instructing the petitioner to submit 
evidence of citation of his published work and other documentation to show his impact on his field. 
In response, the petitioner listed various achievements which, he asserted, place him near the top of 
his field. Documentation of those achievements (including publications and peer review) is not 
documentation of their importance. See Matter of Soffici, 22 I&N Dec. at 165. 
The petitioner cited "several letters from the documenting that he is not only an 
outstanding cardiologist, but that he has been indispensable to the in several 
ways." Dr. professor of internal medicine, called the petitioner "an integral part 
of the administrative hierarchy at the university," whose "research work is well known across the 
nation." Dr. cited no evidence to support the latter assertion. Dr. asserted: 
"Due to his efforts, norepinephrine is now the first line agent used in our intensive care unit" for 
patients with cardiogenic shock. Dr. did not indicate that the use of norepinephrine 
originated with the petitioner, or that hospitals across the country have adapted their practices in 
response to the petitioner's work. 
Dr. director of Cardiovascular Medicine at stated that the petitioner played a 
significant role for the hospital's cardiology house staff as well as at the 
These tasks are inherently local in nature. Dr. also claimed that the petitioner has 
earned "national repute" as "one of the leading researchers at the but he 
provided no data to support that assertion. 
Dr. professor of epidemiology and internal medicine at the 
School of Public Health, described some of the petitioner's research projects and asserted that the 
petitioner's "work speaks for itself." 
With respect to the petitioner's work at a hospital, a full-time job offer from such a 
facility can be grounds for a waiver under section 203(b)(2)(B)(ii)(I)(aa), provided the petitioner 
meets certain other requirements. The petitioner has not claimed that such a job offer exists, and he 
has not attempted to meet the other related requirements. A temporary rotation at a 
facility is not a basis for permanent immigration benefits, and because the petitioner has already 
performed the work in question, it offers no prospective benefit to the United States. 
The petitioner noted his recent appointment as Chief Cardiology Fellow. This 
appointment took 
place after the petition's filing date, and therefore could not establish eligibility as of the petition 's 
filing date even if the petitioner had established its significance. An applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time of filing the benefit request. 
8 C.F.R. § 103.2(b)(l). Therefore, subsequent events cannot cause a previously ineligible alien to 
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become eligible after the filing date. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
The petitioner repeated the claim that his "work has been cited by several leading researchers in the 
field." The petitioner submitted copies of four papers that contained citations to his work, including 
two "editorial comments" and two peer-reviewed articles. The petitioner did not establish that these 
materials show a high citation rate, or that the citing authors are "leading researchers in the field" as 
claimed. The petitioner also submitted a printout from the online publication 
subtitled ' " The article, ' 
" described the findings in one of the petitioner's articles. The record does not 
establish the reputation or readership of , or the significance of having one's 
work chosen for an article there. In this regard, it is significant that the article did not explain the 
relevance of the petitioner's article (which concerned certain fainting episodes) to the practice of 
dermatology, which is the publication's self-described focus. 
Evidence regarding scholarships shows that the petitioner's training is proceeding well, but it does 
not demonstrate "sustained acclaim within the medical community" as the petitioner claimed. At 
most, the documentation shows that the petitioner's performance as a trainee compares favorably 
with that of other trainees. 
A letter from Dr. on the letterhead of the reads, in part: 
I write to thank you for the exceptionally fine quality of your efforts as a reviewer for 
during 2012 .... We grade the quality of each review 
and our editors gave the top grade to the work you did for . We know 
who our best reviewers are and you are one of them. 
The director denied the petition on October 30, 2013, stating that the record indicates that the 
petitioner's work is primarily clinical patient care, which is local in scope. The director 
acknowledged the petitioner's submission of support letters, but found that the letters "do not carry 
enough weight to establish eligibility for the classification sought." The director also acknowledged 
the petitioner's published work, but found that the petitioner had established only "a minimal degree 
of interest" from others in the medical community. 
The petitioner asserts that he is the "[ a]uthor of multiple original research articles" that have "been 
cited by several leading researchers in the field." The petitioner has made this claim previously, and 
has not shown that his publication or citation history distinguishes him in his field. 
The petitioner asserts that he has been "[r]ecognized as one of the nation's top reviewers by the 
' The petitioner does not elaborate, but he apparently refers to Dr. 
letter, discussed above. That letter indicated that the petitioner received "the top grade" for 
his reviewing work, but it did not show that the petitioner has influenced the field as a whole through 
his peer review work. The petitioner has discussed the importance of peer review as a crucial form 
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of quality control for published research, but peer review is not an occupation. Rather, the record 
indicates that it is a voluntary, ancillary function performed by those who are active in research. The 
petitioner has not established that performing peer review in this way is a distinction in the field that 
qualifies him for the national interest waiver. 
The petitioner asserted that previously submitted letters "made clear that he is highly respected for 
his clinical abilities in the field of cardiology." The Board of Immigration Appeals (BIA) has held 
that testimony should not be disregarded simply because it is "self-serving." See, e.g., Matter of S­
A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The BIA also held, however: "We not only 
encourage, but require the introduction of corroborative testimonial and documentary evidence, 
where available." !d. If testimonial evidence lacks specificity, detail, or credibility, there is a 
greater need for the petitioner to submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 
(BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. 165. 
The petitioner asserts that clinical skills "cannot easily be documented on a labor certification," but 
specific achievements that influence the field can be documented in other ways. In this instance, the 
record fails to support claims that the petitioner has demonstrably influenced the field beyond the 
institutions where he has trained. 
The petitioner submits new evidence, indicating that he has continued to submit manuscripts for 
publication. Published research can influence the field, but the published material is not evidence of 
its own influence. The new materials documented on appeal have not yet been published; only one 
of the three new manuscripts had been accepted for publication at the time the petitioner filed the 
appeal. The future impact of these writings is, as yet, unknown. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 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"). 
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As is clear from 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 labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.