dismissed EB-2 NIW Case: Chiropractic

fdpntleing data deleted to 
prevent clearly unwafianted 
invasion of personal pri- 
PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
EAC 04 096 52 192 
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: 
SELF-REPRESENTED 
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. 
Pobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition. The director reopened the matter on motion and ultimately denied the petition again. The 
matter is now before the Administrative Appeals Office (AAO) based on two appeals, one of which 
was filed before the director's final decision. The first appeal, EAC-05-104-5 1367, will be dismissed as 
moot. The second appeal, EAC-05-241-5043 1, will be dismissed on its merits. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2)(B)(ii) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. 3 11 53(b)(2)(B)(ii), as an alien physician. The petitioner asserts 
that the beneficiary is an alien physician who has agreed to work full time as a physician in an area or 
areas designated by the Secretary of Health and Human Services as having a shortage of health care 
professionals. 
In his initial decision, dated January 29, 2005, the director found the beneficiary ineligible for 
classification as an alien of extraordinary ability pursuant to section 203(b)(l)(A) of the Act, the 
classification indicated on the petition. On February 18, 2005, the petitioner filed a motion noting that 
the cover letter accompanying the petition clearly requested classification pursuant to section 
203(b)(2)(B)(ii) of the Act and requesting that the matter be reopened and reconsidered under that 
classification. On March 1, 2005, the petitioner filed the first appeal. In a supplementary brief dated 
March 28, 2005, prior counsel requested that the MO remand the matter to the director for 
consideration under section 203(b)(2)(B)(ii) of the Act. On April 19, 2005, the director reopened the 
matter and requested additional evidence relating to section 203(b)(2)(B)(ii) of the Act. The petitioner 
responded on July 12,2005. On August 3,2005, the director denied the petition again, concluding that 
the beneficiary was not eligible for classification under section 203(b)(2)(B)(ii) of the Act. 
The petitioner's only request in the first appeal is that the AAO remand the matter to the director for 
consideration under section 203(b)(2)(B)(ii). This request, however, is moot as the director reopened 
the matter and took the action for which we are requested to remand the matter, consideration pursuant 
to section 203(b)(2)(B)(ii). As such, the first appeal must be dismissed as moot. 
In the second appeal, the petitioner challenges the director's final decision under section 
203(b)(2)(B)(ii). The merits of this appeal will be addressed below. 
Section 203(b) of the Act, as amended, provides: 
(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 
Page 3 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B)(i) Subject to clause (ii), the Attorney General may, when the Attorney General 
deems it to be in the national interest, waive the requirements of subparagraph (A) that 
an alien's services in the sciences, arts, professions, or business be sought by an 
employer in the United States. 
($(I) The Attorney General shall grant a national interest waiver pursuant to 
clause (i) on behalf of any alien physician with respect to whom a petition 
for preference classification has been filed under subparagraph (A) if-- 
(aa) the alien physician agrees to work full time as a 
physician in an area or areas designated by the Secretary of 
Health and Human Services as having a shortage of health 
care professionals or at a health care facility under the 
jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in 
any State has previously determined that the alien physician's 
work in such an area or at such facility was in the public 
interest. 
The regulation at 8 C.F.R. 5 204.12(a) provides: 
Which physicians qualzjj? 
 Any alien physician (namely doctors of medicine and 
doctors of osteopathy) . . . . 
The regulation at 8 C.F.R. 5 204.12(~)(4) provides: 
Evidence that the alien physician meets the admissibility requirements established by 
section 2 12(a)(5)(B) of the Act. 
The beneficiary has a doctor of chiropractic. The beneficiary's transcript reflects eight trimesters of 
coursework. The director concluded that the beneficiary was not a doctor of medicine or a doctor of 
osteopathy. The director further concluded that the beneficiary was inadmissible as an "unqualified 
physician." 
On appeal, the petitioner asserts that chiropractic care is part of the medical profession, that the 
beneficiary's degree is the equivalent of a doctor of osteopathy and that he is licensed to practice as a 
chiropractor. Whether the beneficiary is a medical professional is irrelevant. For example, nurses are 
medical professionals but are not covered under this classification. Significantly, doctors of osteopathy 
are medical professionals, but the regulation specifies both doctors of medicine and doctors of 
osteopathy. Thus, we presume the regulations to require one of the two actual degrees specified, a 
doctor of medicine or a doctor of osteopathy. The beneficiary has neither. The regulations make no 
provision for "equivalent" degrees. As such, the beneficiary is not a qualifying physician. 
In addition, the commentary to the relevant interim regulations at 65 Fed. Reg. 53889 (2000) provides: 
While the statutory language says "any physician," the Service notes that HHS currently 
limits physicians in designated shortage areas to the practice of family or general 
medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry. 
Unless HHS establishes shortage areas for other fields of medicine, only these fields of 
medicine are covered by this rule. 
The shortage designation for the petitioner's location reflected in the record is primary care. The 
beneficiary is not practicing primary care medicine or in any of the above areas of medicine. Rather, 
the beneficiary is a chiropractor. Thus, he is not eligible for the physician national interest waiver. 
Regarding the beneficiary's admissibility, section 212(a)(5)(B) applies to graduates of unaccredited 
medical schools. The beneficiary is not a graduate of a medical school, accredited or otherwise, but a 
chiropractic college. He has submitted evidence that he is licensed to practice chiropractic care. As 
such, it is not clear that the beneficiary is inadmissible as an unqualified physician, but only because he 
did not graduate from any medical school, accredited or unaccredited. The inclusion of this ground of 
inadmissibility in the regulations, however, suggests that the visa classification is limited to medical 
school graduates. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). The regulation at 8 C.F.R. 
204.12(~)(3) requires the submission of: 
A letter (issued and dated within 6 months prior to the date on which the petition is 
filed) from a Federal agency or from the department of public health (or equivalent) of a 
State or territory of the United States or the District of Columbia, attesting that the alien 
physician's work is or will be in the public interest. 
(i) 
 An attestation from a Federal agency must reflect the agency's 
knowledge of the alien's qualifications and the agency's background in 
making determinations on matters involving medical affairs so as to 
substantiate the finding that the alien's work is or will be in the public 
interest. 
Page 5 
(ii) An attestation from the public health department of a State, 
territory, or the District of Columbia must reflect that the agency has 
jurisdiction over the place where the alien physician intends to practice 
clinical medicine. If the alien physician intends to practice clinical 
medicine in more than one underserved area, attestations from each 
intended area of practice must be included. 
In response to the director's notice of reopening and request for additional evidence, the petitioner 
submitted a letter fiom his Congressman. Congress is not a federal "agency" and the congressman does 
not provide his background in making determinations on matters involving medical affairs. On appeal, 
the petitioner submits an August 22, 2005 letter from the Office of the Governor of Maine. First, the 
letter is not dated within six months prior to filing the petition. Regardless, the governor's office is not 
a public health department of the State of Maine. Thus, the petitioner has failed to comply with the 
regulation at 8 C.F.R. $204.12(~)(3). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
U.S.C. $ 1361. The petitioner has not sustained that burden. For the above stated reasons, considered 
both in sum and as separate grounds for denial, the petition may not be approved. 
This decision is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeals are dismissed.