dismissed EB-2 NIW Case: Chiropractic Medicine

(b)(6)
Date: fEB 2 6 2014 
INRE: Petitioner: 
Beneficiary : 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeal s 
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: 
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, 
AlOUdVJctu 
( Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
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. According to 
Part 6 of the Form 1-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as a 
"Chiropractic Physician." At the time of filing, the petitioner was working at the 
· · · 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 brief from counsel dated August 19, 2013. 
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 record reflects 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 cettification, is in the national interest. 
The regulation at 8 C.P.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ET A-750B, Statement of Qualifications of 
Alien, in duplicate." The petitioner did not execute this required document for the petition, and 
therefore the petitioner has not properly applied for the national interest waiver. For this reason 
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alone, the petitioner has failed to establish eligibility for the benefit sought. 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. The 
AAO conducts appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th 
Cir. 2012); Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 
(2d Cir. 1989). 
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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent prut: 
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 
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 Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set fmth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he 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 he will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
his past record justifies projections of future benefit to the national interest. /d. at 219. The petitioner's 
subjective assurance that he 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 petitioner, rather than to facilitate the entry of an individual with no demonstrable 
prior achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The petitioner has established that his work as a chiropractic physician is in an area of substantial 
intrinsic merit. It remains, then, to determine whether the proposed benefits of the petitioner's work 
will be national in scope and whether he will benefit the national interest to a greater extent than an 
available U.S. worker with the same minimum qualifications. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. /d. at 220. At issue is whether 
this petitioner's contributions in the field are of such significance that he merits the special benefit of 
a national interest waiver, a benefit separate and distinct from the visa classification he seeks. A 
petitioner must demonstrate a past history of achievement with some degree of influence on the field 
as a whole. /d. at 219, n. 6. 
The petitioner filed the Form I-140 petition on June 28, 2012. In support of the petition, the 
petitioner submitted various letters of support. As some of the letters contain similar claims 
addressed in other letters, not every letter will be quoted. Instead, only selected examples will be 
discussed to illustrate the nature of the references' claims. 
, stated: 
[The petitioner] is a doctor of chiropractic who graduated from ~-_._· ----- ___ __.. 
... in April 2011. 
* * * 
[The petitioner], with his fluency in Korean, is uniquely suited to delivering chiropractic care 
to the underserved population within the growing local Asian community who may benefit . 
from chiropractic care, but that who are unable to afford it. [The petitioner] has amply 
demonstrated his passion for service with his creation of a Free Chiropractic Clinic at 
for un- or under-insured patients who cannot afford care. 
His mission services in Guatemala and his Internship at - in 
: both demonstrate his determination 
to help people achieve health and wellness. 
While _ graduates hundreds of students each year, [the 
petitioner's] unique background, culture, and passion, coupled with his skills in acupuncture, 
chiropractic, sports 
injuries management and pediatrics, make him a true asset to his 
community. 
comments on the petitioner's skills in acupuncture and experience in the medical care 
field. However, special or unusual knowledge or training does not inherently meet the national 
interest threshold. NYSDOT at 221. Any claim that the petitioner possesses useful skills, or a 
"unique background" relates to whether similarly-trained workers are available in the United States 
and is an issue under the jurisdiction of the U.S. Department of Labor through the labor certification 
process. 
. stated: 
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[The petitioner] was my student for three classes when he attended 
* * * 
The chiropractic profession has developed in the United States over the past 115 years but its 
outreach into Asian-American communities has been relatively limited, in large part because 
only a very small percentage of our chiropractic students are Asian and Asian-American. I 
know that [the petitioner] is acutely aware of this situation and has a strong desire to serve 
these underserved communities. 
indicates above that the petitioner ' s chiropractic practice will serve "underserved 
communities." In Section 5 
of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 
106-95 . (November 12, 1999), Congress specifically amended the Act by adding section 
203(b )(2)(B)(ii) to create special waiver provisions for certain physicians in underserved areas. This 
exception is limited to physicians who follow specific requirements set forth in the regulation at 
8 C.P.R. § 204.12. In this instance, the petitioner has not submitted qualifying evidence under 8 C.P.R. 
§ 204.12 such as demonstrating that he will provide full-time clinical medical services in a geographic 
area designated by the Secretary of Health and Human Services as having a shortage of health care 
professionals or in a facility under the jurisdiction of the Secretary of Veteran's Affairs. 
[The petitioner] ... volunteers his working hours to provide free medical services to those 
with low-income or no health insurance. For the last six years he has spent 4 to 5 hours 
every Sunday afternoon providing Chiropractic services to the elders first and to anyone in 
need. 
* * * 
I was fortunate enough to have [the petitioner] co-lead a mission trip to Guat emala with 17 
young adults in 2010. He spearheaded the Health Care portion of the mission trip. He 
provided medical services for over 300 patients during our 6-day stay. 
and other references point to the petitioner 's volunteer work, including providing 
chiropractic services on Sundays at and co­
leading the church's mission trip to Guatemala, but do not indicate how the petitioner's impact or 
influence as a chiropractic physician is national in scope. In addition, the petitioner's references do 
not provide sufficient details about the medical services performed by the petitioner in Guatemala 
that specifically involved chiropractic care, the specialty in which the petitioner intends to work in 
the United States. 
(b)(6)
NON-PRECEDENT DECISION 
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a chiropractor for Choice of l commented on 
the petitioner's passion for patients, chiropractic excellence, community work, and volunteer 
services , but does not provide specific examples of how the petitioner's work has influenced the 
chiropractic field as a whole. 
, stated: 
I met [the petitioner] through my community engagements under the 
- from 2009 to 2011. [The petitioner] has spearheaded health 
and wellness initiatives for the Society by leading numerous free health educational seminars 
for those who were in need. 
While the petitioner has been involved in various health and wellness events through the Korean­
American community, there is no documentary evidence demonstrating that the petitioner's work 
has influenced the chiropractic field as a whole, or that the petitioner has or will benefit the United 
States to a greater extent than other similarly qualified chiropractic physicians. 
The petitioner submitted a DVD recording from one of his wellness seminars , a brochure from a 
2010 wellness seminar at 
~ ~ (emphasis added), and additional reference letters commenting 
on his wellness seminars , but there is no documentary evidence demonstrating that the petitioner's 
particular wellness guidelines or treatment methodologies have been implemented by a number of 
chiropractic clinics, have attracted significant attention in chiropractic magazines or journals, or have 
otherwise influenced the field as a whole. 
further stated that the petitioner "has volunteered to serve as a chief medical advisor for 
the 2013 in June 
2013." Additional references comment on the petitioner's work as "Medical Director" for the 2013 
in June 2013. For example , , President of the 
, stated : "Over five thousand athletes from all over the ·united 
States will travel to Kansas City to partake in the sports event . . . . It is import ant to recognize that 
[the petitioner 's] involvement as Medical Director is national in scope since he will be responsible 
for treatment of injured athletes." 
In addition . stated: 
I came to know of [the petitioner's] work while serving as the Honorary Chairman of the 
. . , which will be hosted by the _ 
[The petitioner] is the Medical Director of the Association and the 
Sports Competition. His role entails providing care and treatment of athletes from all over 
the country and this makes [the petitioner's] work nationally significant. If one person from 
each state were to return home after benefiting from [the petitioner's] chiropractic treatment, 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
they will further seek additional Chiropractic care at their home state. Thus, [the petitioner 's] 
influence in Chiropractic care is not limited to one state but rather the nation as a whole. 
The petitioner's service as a 
. . post-dates the filing of the petition. Eligibility must be established at 
the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! 
Comm'r 1971 ). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matt er of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision 
further provides , citing Matter of Bardouille , 18 I&N Dec. 114 (BIA 1981) , that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition. " ld. at 176. 
Accordingly , the petitioner's role for the . . in June 2013 and any 
contributions deriving from that role cannot be considered as evidence to establish his eligibility at 
the time of filing. 
Regarding ~ - -- _ _ _ _ assertions that the petitioner's work is 
nation al in scope, there is no documentary evidence establishing that the benefits resulting from the 
petitioner's work a chiropractic physician extends beyond his patients such that they will have a 
national impact. NYSDOT provides examples of employment where benefits would not be national 
in scope: 
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. 
NYSDOT at 217, n.3. The above analysis is applicable to the petitioner' s occupation as well. 
The director denied the petition on June 21, 2013. The director stated that the petitioner had not shown 
that the benefits of his proposed employment are national in scope. The director also determined that 
the record lacked evidence showing that the petitioner's work has influenced the field. The director 
therefore concluded that the petitioner failed to establish that an exemption from the requirement of a 
job offer would be in the national interest of the United States. 
Counsel argues on appeal that the letter from shows that the petitioner's work 
for the _ is national in scope. Counsel asserts that the petitioner's 
work as "Head of Medical Department . . . included work on athletes from all over the United 
States." The record, however , does not include documentary evidence showing the home states of 
the participants in the Competition or the number of participating athletes 
who were injured and specifically sought the petitioner's chiropractic services. The unsupported 
assertions of counsel do not constitute evidence. See Matt er of Obaigbena, 19 I&N Dec. 533, 534, n.2 
(b)(6)
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Page 8 
(BIA 1988); Matter ofLaureano, 19 I&N Dec. 1, 3, n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). Counsel also does not provide any arguments to distinguish the 
petitioner's occupation from those cited in NYSDOT as not having a national impact from a single 
individual. Furthermore, as the petitioner seeks employment as a chiropractic physician, his 
treatment of athletes who received non-chiropractic medical services at the 
Competition cannot establish his eligibility for the national interest waiver. Regardless, as 
previously discussed, the mentioned in 
letter was held in June 2013 and post-dates the filing of the petition. Again, eligibility 
must be established at the time of filing. 8 C.F.R. § 103.2(b)(1) , (12); Matter of Katigbak, 14 I&N 
Dec. at 49. Accordingly, the petitioner's work at the competition in 2013 cannot be considered as 
evidence to establish his eligibility for this petition. 
The record included additional letters of support from ' 
~who all commented favorably on the 
quality of chiropractic treatment that they received from the petitioner. 
Counsel asserts that the preceding letters from patients of the petitioner who "travel great distances 
to the J area to receive treatment " demonstrate the national scope of petitioner 's 
work. Submitting letters from a handful of patients who reside outside of the petitioner's locality 
does not establish that he produces benefits that are national in scope. The impact of one 
chiropractor 's treatment of his patients is so attenuated in the field that it would not yield a national 
effect. See NYSDOT at 217, n.3. In the present matter, the petitioner has not shown the benefits of 
his impact as a chiropractor beyond the patients utilizing his services and, therefore, that his 
proposed benefits are national in scope. In addition, counsel does not explain how the petitioner ' s 
treatment of patients from multiple states indicates that he will serve the national interest to a 
substantially greater degree than other U.S. chiropractors with the same minimum qualifications. 
Moreover, the record does not include specific examples of how the petitioner's chiropractic work has 
influenced the field as a whole. 
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 the petitioner's references are not without weight and have been considered above. 
US CIS 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 
ultim ately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. !d. The submission of letters of support from the petitioner's personal and 
professional contacts is not presumptive evidence of eligibility; users may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of 
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Page 9 
V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be 
evidence as to "fact"). 
A plain reading of the statute indicates that engaging in a profession (such as chiropractic care) does not 
presumptively exempt such professionals from the requirement of a job offer based on national interest. 
The petitioner has not established that his past record of achievement is at a level sufficient to waive 
the job offer requirement which, by law, normally attaches to the visa classification sought by the 
petitioner. 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 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"). 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. 
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, that burden has not been met. 
ORDER: The appeal is dismissed.