dismissed EB-2 NIW Case: Cardiology

(b)(6)
DATE: NO:V 0 7 2014 
INRE: 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 
Washing ton, 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: 
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: Uwww.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, 
~~~:::~tcat;ve Appeals Offke 
www.uscis.gov 
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DISCUSSION: The Director, Texas SeiVice Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) 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 . At the time he filed the petition, 
the petitioner was a fellow at the U.S. Citizenship and 
Immigration SeiVices (USCIS) records indicate that he now works for Public 
Hospital District. 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 states that his "very impressive and extensive track record of national 
contributions to the scientific community" warrants approval of the national interest waiver. 
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 seiVices 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 
seiVices 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, P.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.P.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 September 13, 2012. 
He indicated, on Part 6, line 7 of the petition form, that his position was not permanent. This is 
consistent with the inherently temporary nature of a medical fellowship, which provides training in a 
given medical specialty. 
The petitioner submitted several letters in support of the petition. Dr. 
director of the Cardiology Fellowship at the 
program 
stated 
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that the petitioner "is a celebrated cardiologist who is renowned for his extraordinary abilities" and 
"is well-known for his research contributions." 
Dr. , co-director of the at the 
• , , Pennsylvania, called the 
petitioner "an extraordinary Physician at the top of his field," whose "reputation as an exceptional 
cardiologist" led to "an invitation to review the research of his peers for some of the nation's top 
medicine journals." The petitioner submitted no evidence from the editors or publishers of those 
journals to confirm that the petitioner's involvement in peer review is the result if his reputation in 
the field of cardiology. 
Dr. chairman of asserted that the petitioner "is a 
superb cardiologist who is able to perform highly advanced diagnostic cardiology procedures ... 
[and] is also nationally recognized for his research in the field of cardiology." Dr. provided no 
further details except to identify the topics of some of the petitioner's research papers and techniques 
in which the petitioner is "also being trained," the completion of which "will make him among a 
select few cardiologist[s] who will be able to perform such complex procedures." 
Simple exposure to advanced technology constitutes, essentially, occupational training which can be 
articulated on an application for a labor certification. 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. See 
NYSDOT, 22 I&N Dec. at 221. Job-related training in a new method, whatever its importance, 
cannot be considered to be an achievement or contribution comparable to the innovation of that new 
method. !d. at 221 n.7. 
Furthermore, the petitioner had not completed the training in question when he filed the petition. 
Rather, Dr. stated that the training was ongoing, and that the petitioner would be well-qualified 
at some future point when the training was complete. 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.P.R. 
§ 103.2(b)(1). USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). Therefore, even if the training in question qualified the petitioner for the 
waiver, he filed the petition at a time when he did not possess that qualification. 
Dr. of the asserted that the petitioner "conducts 
award-winning research on cardiovascular diseases," and that the petitioner's "research paved the 
way for government agencies to fund anti-retroviral drugs free of cost to patients in the State [of 
Assam in India]." 
Dr. called the petitioner "a cardiologist with rare expertise in the treatment of heart 
failure, coronary heart disease and cardiac arrhythmia." Dr. asserted that the petitioner "is 
being trained to perform the most complicated and sophisticated procedures," and that the petitioner 
"provides medical care to medically underserved patients and veterans ." Dr. a 
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gastroenterologist for 
specialty of cardiology. 
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NON-PRECEDENT DECISION 
claimed no training or expertise in the petitioner's 
Another witness outside the field of cardiology is Dr. an instructor in the Department 
of Radiology at the who asserted that the petitioner "is among the top 
5-10% of the cardiology house staff in the nation," who "has conducted landmark research in the 
field." Dr. attended at the same time as the petitioner. 
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 ofY-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. !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 considered above primarily contain bare assertions regarding the petitioner's claimed 
reputation and recognition, but they do not show how the petitioner's work has influenced his field. 
The record fails to substantiate the claims in the letters, beyond the basic showing that the petitioner 
has written published articles and participated in peer review. 
The petitioner submitted a list of 23 "Publications/Presentations/Poster Sessions." His curriculum 
vitae includes this same list, with a 24th paper erroneously identified as a "citation." Nine of the 
items are identified as journal articles, two of which had not yet been accepted for publication (one 
was awaiting review, a second had been returned for revision). The petitioner submitted copies of 
his poster presentations, published abstracts from conference presentations, and some of his journal 
articles. The petitioner, in his initial submission, did not submit any evidence that other researchers 
have cited his published work. 
The petitioner submitted copies of electronic mail messages from recruiters, seeking cardiologists, 
internists, and hospitalists in various parts of the country. These messages establish general demand 
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for physicians in primary care and certain specialties, but do not show that the petitioner, m 
particular, has drawn special attention from these recruiters. 
The director issued a request for evidence on August 5, 2013. The director spelled out various 
requirements that the petitioner would need to fulfill in order to qualify for the waiver as a physician 
in a medically underserved area or ---J as described at section 203(b)(2)(B)(ii) of the Act. 
In the alternative, the director also stated that, to qualify for the waiver under NYSDOT, the 
petitioner "must establish . 
. . a past record of specific prior achievement with some degree of 
influence on the field as a whole." In response, the petitioner stated that he seeks the waiver under 
NYSDOT, and not as a physician in a medically underserved area. Nevertheless, in an accompanying 
statement, the petitioner stated that he is "fortunate to serve the 
veterans suffering from 
cardiovascular disease ," there is "a shortage of ... cardiologists nationally," and that 
Pennsylvania, where he was training at the time, is "a Health Professional Shortage Area." The 
shortage designation is relevant only for petitioners seeking classification under section 
203(b)(2)(B)(ii) of the Act, which requires a five-year commitment. The petitioner has stated that he 
does not seek the waiver under that provision, and he relocated to Washington, less than 
a year after he submitted this statement. A local worker shortage is not a basis for approving the 
waiver under NYSDOT. See id. at 218. Similarly, NYSDOT contains no provision granting the 
waiver based on temporary employment at a In the petitioner's case, the record shows 
that his work at the · was part of his residency training. 
The petitioner described issues of concern in cardiology , including radiation exposure in 
catheterization laboratories and shortening hospital stays after cardiac catheterization, and stated that 
he is "currently working on a number of projects" in these areas, but he did not elaborate or establish 
that his work to date has had a significant impact on those problems. The petitioner's research work 
was tied to his temporary employment in which he has since left. 
The petitioner submitted an updated list of publications and presentations, but establishing their 
existence does not establish their influence or significance. The petitioner stated that his work had 
been "[p]ublished 24 times in ... major journals" and "[c]ited 17 times in major journals since 
2008." The petitioner had previously claimed a total of 24 articles, oral presentations , and poster 
presentations combined, and provided a list showing that most of the papers were presentations 
rather than full journal articles. Nine of the listed items were poster presentations at one of two 
conferences in 2012 (one in Chicago, the other in Miami). The petitioner did not identify any new 
articles that would have brought his total number of journal publications up to 24 as claimed. 
The petitioner, in his response to the August 2013 request for evidence, also did not submit or 
identify any citing articles. Therefore, the record contains no evidence to support the above 
statement. Also, assuming that the claimed citation figure is correct, the petitioner failed to establish 
that this number of citations is significantly high in his specialty. 
The director denied the petition on January 9, 2014, stating that the petitioner had established the 
intrinsic merit of his occupation, but not its national scope. The director stated that the petitioner 
had not documented a pattern of widely cited published work, and that clinical medicine has an 
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inherently local impact. The director quoted from the submitted letters, but found the letters to be 
"general in nature" and lacking corroboration. 
On appeal, the petitioner asserts that his "initial submission . . 
. [included] substantial evidence 
demonstrating and establishing that he has distinguished himself from his peers." Specifically, the 
petitioner stated that his work has been "[p]ublished 24 times in major journals" and "[c]ited 17 
times in major journals since 2008." The petitioner did not submit evidence to support this claim, or 
to demonstrate that this claimed rate of citation, averaging less than 0.71 citations per article, 
establishes significant impact and influence in the field of cardiology. 
The petitioner added that he has written or co-written 17 abstracts for "major cardiology 
conferences," and has been "[i]nvited [to serve] as a peer reviewer for [five] journals." The 
petitioner has sought to portray peer review as an activity reserved for relatively few ranking figures 
in the field, but the record does not support this characterization. 
I 
The petitioner asserts that he "is highly respected for his clinical abilities in the field of cardiology 
which of course cannot easily be objectively documented on a labor certification ." The unsupported 
claim that the petitioner would have difficulty obtaining an approved labor certification does not 
establish that it is in the national interest to waive the job offer requirement. The petitioner's 
assertion of a significant shortage of cardiologists (consistent with the many submitted inquiries 
. from recruiters) would tend to indicate reduced competition for jobs, which, in turn, would generally 
be a favorable factor in the labor certification process. 
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." !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 
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. 
The AAO 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.