dismissed EB-2 NIW Case: Cardiology

(b)(6)
DATE: 
DEC 0 5 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCI'IONS: 
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, tiling location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
Jft:�;trative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before 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 cardiologist. The petitioner is currently a fellow at 
. _ Pennsylvania. 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 legal brief. 
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 
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). 
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Page 3 
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 clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
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 1-140, Immigrant Petition for Alien Worker, on September 20, 2013. 
An accompanying introductory statement called the petitioner "a highly renowned Cardiologist as 
well as a medical researcher who is acclaimed and respected in the field of his expertise." In a 
separate personal statement, the petitioner stated: 
It is my goal to continue in my field of expertise by working in a tertiary or referral 
center, which is at the forefront of new advances and has active clinical and 
translational research programs. My primary interests include structural heart disease 
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NON-PRECEDENT DECISION 
interventions, advanced heart failure management and imaging modalities to modify 
treatment strategies. By working in a teaching hospital I will have the opportunity to 
teach medical students and house staff at various levels of training. 
To date, I have received several offers of employment from different medical centers 
throughout the United States. 
The intrinsic merit of cardiovascular medicine is not in dispute in this proceeding. Regarding the 
"national scope" prong of the NYSDO T national interest test, the petitioner did not claim that he 
would engage in medical research in the future. Rather, the petitioner emphasized "his unique 
clinical skills" and "mastery of complex, life-saving procedures." The petitioner asserted that the 
benefit from his employment is national in scope because, given the number of patients affected with 
cardiovascular disorders, "early identification and disease management utilizing [the petitioner's] 
expertise will result in a significant reduction of health care costs," "by preventing an unnecessary 
use of more expensive and invasive interventions." The petitioner did not establish that his work has 
had such an effect to date. Without evidence to that effect, his assertions about future results amount 
to unfounded speculation. 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 of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
Regarding the third and final prong of the NYSDOT national interest test, the petitioner stated that 
his "record of accomplishments justifies projections of continued future benefits to the national 
interest. . . . The dramatic increase in cardiovascular workload due to the aging population, 
combined with a shortage of cardiologi st[s], further warrants the granting of this waiver." 
A shortage of qualified workers is not grounds for a national interest waiver under NYSDOT, 
because the labor certification process already takes into account the unavailability of qualified 
workers. See id. at 218. Section 203(b )(2)(B)(ii) of the Act makes the national interest waiver 
available to physicians in designated shortage areas, but to qualify for the shortage-based waiver, 
physicians must meet a number of conditions described in the regulations at 8 C.F.R. § 204. 12. The 
petitioner has not met, or claimed to have met, those conditions. Therefore, the assertion of a 
shortage is not relevant, except to the extent that a true shortage would tend to improve the 
petitioner's chances of obtaining an approved labor certification. 
The petitioner also bases his waiver request on his claimed accomplishments. 
that he "was selected for the prestigious residency position in 
' and "a highly prestigious and coveted Cardiology Fellowship position at 
the world renowned ____ 0 _____ 
J � � 
••• based on 
his prior outstanding achievements." Residencies and fellowships are temporary training positions; 
one's appointment to such a position constitutes recognition that one's training is not yet complete. 
(b)(6)
NON-PRECEDENTDEC�ION 
Page 5 
The petitioner asserted that he has also "participated in important research projects where he was a 
critical member on the research team," and claimed: "His groundbreaking research has attracted 
considerable attention in the national and international medical research community. " The petitioner 
then identified three conference presentations. 
To support the claim that his work "has attracted considerable attention," the petitioner submitted 
what he called "four (4) letters from leading recognized experts in the field of medicine, including 
those who have never worked with [the petitioner], attesting to the significance of his work." 
Two of the letters are from physicians at _ . 
_ 
where the petitioner works. 
Dr. director of cardiovascular magnetic resonance imaging (MRI), has 
"worked with [the petitioner] on some of his research projects." Dr. praised the 
petitioner's "outstanding performance" and described the research projects on which he and the 
petitioner have collaborated. One project, involving the use of cardiac MRI to identify changes in 
the heart that affect the prognosis in pulmonary hypertension, "can allow us to use expensive 
therapies and referral to transplant programs at an appropriate juncture in the natural history of 
disease progression." Another project used cardiac MRI "to assess the correlation between adjusted 
pro BNP levels and invasive hemodynamic parameters obtained by right heart catheterization. . . . 
The use of non invasive [sic] modalities to identify the correlation can translate into safe and 
effective patient care without having to undergo repeated invasive procedures. " Dr. did 
not state the extent to which these projects have led to new treatment protocols in the field. 
Dr. _ . program director for advanced heart failure and cardiac transplant fellowship, 
has "worked closely with [the petitioner] on the inpatient Heart Failure service, which handles high 
acuity patients with end stage heart failure as they are awaiting LV AD/Heart Transplant." After 
describing a case in which the petitioner stabilized a "very ill" patient, Dr. stated that he "had 
a special interest in [the petitioner's] research projects as they pertained to pulmonary hypertension." 
Dr. stated that the petitioner's work on one such project "may allow us to decrease the number 
of invasive procedures," thus reducing hospital admissions and risk. 
The remaining two letters are from individuals who stated that they based their comments not on 
personal knowledge of the petitioner, but on review of his credentials. Dr. of the 
stated that the petitioner's "work has led to important improvements for clinicians and 
patients in the early diagnosis, cost effective treatment and less invasive procedures in the 
management of patients with pulmonary hypertension." Dr. _ did not identify any clinicians 
or institutions (including the . that have adopted the methods described in the 
petitioner's research, or that the petitioner was responsible for developing (as opposed to testing) 
those methods. 
Dr. _ , assistant professor at the stated that the 
petitioner "has garnered wide acclaim for his research"; however, the record does not directly 
support this assertion. Dr. stated that the petitioner's "work will shed significant light on the 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
way the right ventricular function and geometry adapts to the high pulmonary pressures." The use of 
the future tense suggests that the full importance of the petitioner's work is not yet known. 
The petitioner submitted a copy of his "Residency Agreement of Appointment" with the . 
Part VI of that 
-
document, "Resident Responsibilities/Eligibility Requirements," includes "patient care" and 
"educational activities," but not medical research, under "the general responsibilities of residents." 
The director issued a request for evidence on October 23, 2013. The director stated that the 
petitioner's residency agreement does not establish that his residency includes research duties. The 
director acknowledged the four letters submitted with the petition, and concluded that the petitioner 
had not established his influence on the field of cardiology as a whole. 
In response, the petitioner asserted that he "spends his time evenly between research activities and 
clinical duties," and repeated the claim that "[h]is groundbreaking research has attracted 
considerable attention in the national and international medical research community. " The petitioner 
listed several ongoing projects, and asserted that "he has proven to be a pioneering cardiologist with 
exceptional achievements in the areas of cardiovascular diseases. His level of knowledge and skill 
(clinical and research) can be found only among very few individuals." 
The petitioner submits a copy of an informational booklet about the 
The 
publication establishes that research takes place at the hospital, and describes some of the projects, 
but the petitioner did not show that the publication mentioned his work at all, which would be 
expected if his research was of particular significance as he has claimed. Furthermore, the Institute's 
own promotional materials are not evidence of wider recognition of the research outside the 
Institute. 
Further evidence of recognition within comes in the form of a letter 
from Dr. an interventional cardiologist who has "known [the petitioner] for 
several years. " Dr. _ described some of the petitioner's research projects, and stated that 
one of the petitioner's earlier works "has been highly appreciated as well as referenced by national 
leaders in pulmonary hypertension such as Dr. as well as Dr. " The 
record contains no statement from Dr. or Dr. and no evidence to corroborate or clarify 
Dr. claim. 
The director denied the petition on May 8, 2014, stating that the petitioner had established the 
intrinsic merit of his intended occupation, but had not met the other prongs of the NYSDOT national 
interest test. The director again cited the petitioner's residency agreement, and found that the 
petitioner had not supported his claim that he evenly divides his time between clinical and research 
duties. The director concluded: "Based on the evidence of record, the scope of the [petitioner's] 
work as a cardiologist will be limited to the patients he treats at 
(b)(6)
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Page 7 
Concerning the third prong of the NYSDOT national interest test, the director quoted from the letters 
in the record, but found that the record does not support "the letter writers' claims that the 
[petitioner's] work in the field has been 'groundbreaking. "' The director concluded that the 
petitioner has not established "a past history of achievement with some degree of influence on the 
field of cardiology as a whole." 
On appeal, the petitioner contends: "The denial was based on an erroneously narrow consideration of 
what constitutes national scope." The petitioner asserts that the precise ratio of research to clinical 
practice is not important, because both have national impact. The petitioner contends that his 
clinical work produces benefits that are national in scope because they reduce "the health care costs 
associated with heart disease by preventing an unnecessary use of more expensive and invasive 
interventions .... Inpatient cardiovascular operations ... accounted for an estimated $286.6 billion 
dollars [sic] nation-wide." The issue of cardiovascular health is of national concern, but the 
petitioner has not shown that his clinical work has addressed the problem on a national level, or 
resulted in cost savings that are perceptible on a national level. 
Research has a greater national scope due to its dissemination; the audience for medical research 
does not have the same practical constraints as the size of one physician's patient base. Although the 
director emphasized the petitioner's residency agreement, which mentions clinical practice but not 
research, the agreement, viewed as a whole, is not a detailed job description, but rather a legal 
document explaining the terms of employment, dealing with parking, benefits, time off, and other 
factors. The record contains substantial, credible documentation showing that the petitioner has 
engaged in several research projects while at 
The petitioner has stated that his intended future work would include a significant amount of 
research, and such work would satisfY the "national scope" prong of the NYSDOT national interest 
test. The issue of concern in this regard is not the nature of what the petitioner intends to do, but 
rather how he will do it. The petitioner has specifically stated his intention to work "in a teaching 
hospital" with "active .. . research programs." The petitioner claims to have "received several offers 
of employment from different medical centers throughout the United States," but he has not 
identified the prospective employers or documented the job offers. He also did not show that these 
offers were for faculty positions at teaching hospitals, rather than for purely clinical positions at 
medical practices. 
The petitioner has not established that any demand exists for his services as a researcher or teacher 
beyond the duties tied to his time-limited fellowship at _ The petitioner 
has claimed that his research work has attracted significant outside attention, but the record does not 
offer sufficient support for this claim. 
The petitioner's appellate brief includes quotations from some of the letters submitted previously, 
with the protest that the director "apparently ignored" the quoted portions. 
(b)(6)
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Page 8 
The opmwns 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. /d. 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. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
The letters describe the petitioner's research in varying levels of detail, but do not show that it has 
influenced the field. At most, some of the letters indicate that the petitioner's work "will" or "can" 
have such an impact at some unspecified time in the future. The petitioner also failed to submit 
corroborating evidence, which could have bolstered the weight of the reference letters. 
The petitioner, in the brief, concedes that "letters of reference are not controlling evidence," but 
asserts that "neither may they be summarily discounted." The letters are not without weight, but 
there is nothing else in the record to support the contention that the petitioner's research has 
importance or influence beyond the norm for research projects conducted by house staff at 
university-affiliated teaching hospitals. In the absence of such evidence, it cannot suffice to submit a 
letter that claims the petitioner's work is "groundbreaking" or "has attracted considerable attention." 
The petitioner has established that he is performing well at a reputable institution, and that his 
mentors are confident in his future success. The record also shows, however, that any research 
duties he has performed to date have been in the context of still-ongoing training. Most of the 
petitioner's documented research presentations have been in-house or at the regional level (such as a 
"Western Pennsylvania" conference). The evidence submitted is not sufficient to establish that his 
research has been particularly influential throughout the field, or that he is likely to have 
opportunities to continue performing research once his training is complete. 
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. at 217, 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 achievement with some degree of influence on the field as a whole"). 
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 
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Page 9 
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.