dismissed EB-2 NIW Case: Chiropractic

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identifying data deleted n 
prevent clearly unwananied 
iIBmSion of-lnah privsj 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
-- --- 
LIN 06 206 50967 
IN RE: 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 8 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as a chropractor. The petitioner asserts that an exemption fiom 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. 
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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
record readily establishes that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds two post-baccalaureate degrees, qualifies as a member of the professions holding an 
advanced degree. The two classifications, both established by section 203(b)(2) of the Act, are 
equivalent for the purposes of this proceeding. A determination regarding the petitioner's claim of 
exceptional ability would be moot; it would occupy significant space in this decision, without affecting 
the ultimate outcome thereof. 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 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 fiom, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comrnr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien 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 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. 
We also note that 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 offerflabor 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's Form I- 140 petition includes the following information: 
Occupation: Doctor of Chiropractic 
Job Title: 
 Doctor of Chiropractic/CIinic Director 
Nontechnical Description of Job: 
1. Clinical, direct patient care. 
2. Operational management 
3. Business development 
4. Public health educator 
On Form ETA-750B, Statement of Qualifications of Alien, the petitioner repeated the assertion that he 
seeks employment as a "Doctor of Chiropractic," in the practice of.., located in 
Wheaton, Maryland. The petitioner indicated that he had worked at that practice since 2003, and that 
his "[r]esponsibilities include direct clinical patient care through physical examinations to provide 
clinical diagnosis and treatment for neuromusculoskeletal conditions. Diagnostic evaluation may 
include x-ray and neurodiagnostic testing. (EMG/NCV)." 
The petitioner's own descriptions of his intended work, quoted above, included no mention of research. 
In an introductory statement accompanying the initial filing, counsel stated: 
[The petitioner] is a Chiropractor trained in Biomechanics, Neuroscience, Electro- 
diagnostics and multi-disciplinary health care. In the field of Neurodiagnostics, he is 
regarded as a scientist of exceptional ability, and has been indispensable to federally 
funded research on health care delivery, neuromusculoskeleton injuries, and treatment 
projects on which he worked as one of only two chiropractors chosen nationwide for a 
National Naval Medical Center internship. 
. . . Practicing integrative medicine using model applications within a clinical setting, 
[the petitioner's] key findings have made available more accurate diagnostic and 
improved integrative medicine treatment options. [The petitioner] combines his 
exceptional skills in neuroscience, biomechanics, electro-diagnosis together with his 
clinical Chiropractic experience to solve problems of national import. . . . 
Published in top journals in his field, [the petitioner] has also presented his findings at 
influential scientific symposia such as the National Chiropractic Legislative Conference 
in Washington, DC. His work is internationally recognized and he is hailed by those 
familiar with his field, as an outstanding scientist with multi-disciplinary skills rarely 
found anywhere. . . . 
[The petitioner] has published several professional articles in the field's top journals and 
presented his findings at influential scientific symposia. His publications and 
conference abstracts are listed in his Curriculum Vitae in (Exhibit G). A sampling of his 
publications and presentations is submitted with this application package. (Exhibit J.) 
Page 5 
The page-long "Research/Presentation Experience" section of the petitioner's curriculum vitae lists two 
conference presentations but no published journal articles. Likewise, the "sampling" of the petitioner's 
work included in the initial submission does not include any published journal articles. The petitioner 
prepared a report for Nascent Health, but there is no evidence that this document was published or 
otherwise made available to anyone outside of Nascent Health. Indeed, every page that contains 
substantive content is marked "Confidential." 
The petitioner also submitted documentation summarizing "The Comprehensive Neuroscience Program 
in the National Capital Area: Research on Spine and Back Pain" at the National Naval Medical Center. 
This document describes research that the petitioner and others planned to conduct in the future, but it 
does not demonstrate that the research eventually took place, or that the results of that research were 
published. (The petitioner claims to have spent less than eight months at the National Naval Medical 
Center.) 
Notwithstanding counsel's claim to the contrary, the petitioner's initial submission contains no 
published articles by the petitioner. (Abstracts published in conference proceedings are not articles, 
but rather brief summaries of oral presentations.) There is no evidence that the petitioner's work has 
been "[plublished in top journals in his field." The assertions of counsel do not constitute evidence. 
See Matter ofobaigbena, 19 I&N Dec. 533,534 n.2 (BIA 1988); Matter oflaureano, 19 I&N Dec. 1, 
3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, the objective documentation in the record did not indicate that the petitioner was still 
involved in research as of 2006 when he filed the petition. Rather, the dated research materials show 
dates that coincide with the petitioner's now-completed academic training. 
Several witness letters accompanied the petitioner's initial submission. While the petition was filed on 
June 30. 2006. most of the letters date fi-om 2005 or earlier. The oldest and varmest letter. dated 
~ebrua& 6, 20'03, is fi-om of the National Naval Medical cent& Dr. stated 
that the petitioner "performed in an outstanding manner during his rotation in Orthopedics" over the 
course of three and a half weeks in early 2003. ~r. praised the petitioner's clinical skills but did 
not mention research or chiropractic. 
The most recent and the most detailed letter is from neurologist 
 of Kensington, 
Maryland. Dr. 
 who has worked with the petitioner "for the past eight months," stated in his 
- - 
March 28,2006 letter: 
Because neural inflammation is a component of pain that the drugs I hold patents on are 
intended to treat, I am well aware of the significance of the [petitioner's] research. . . . 
The combination of genetics and markers of inflammation is a novel and important step 
in elucidating the etiology of multiple types of lumbar pain. Any significant outcome of 
this research will lead to pharmaceutical inventions for future treatment. . . . 
Page 6 
As the Clinic Director in charge of several satellite offices, [the petitioner] focuses on 
total-ethical patient care as well as practice operations and management. [The 
petitioner] is also Medical Director of Imprimis Diagnostic Services, a private company 
offering state of the art neurodiagnostic services on refmal from physicians in Maryland 
and Northern Virginia. 
then detailed six contributions by the petitioner: "Integration of chiropractic and medical 
care," "Department of Veteran[s] Affairs Chropractic Demonstration Program: Oversight Advisory 
Committee Panel Member," "Co-Principal Investigator in the Comprehensive Neuroscience Program in 
the National Capital Area: Research on Spine and Back Pain," "Co-Developed Hospital-Based 
Chiropractic Residency Program," 
 of Inte ative Medicine in hospital settings" and 
"Neurodiagnostic Research." A good ''Deliv- deal o s discussion of the petitioner's "Delivery of 
Integrative Medicine in hospital settings" is copied, word-for-word, fiom a "Confidential" report that 
the petitioner prepared for Nascent Health. Dr. stated that the petitioner "maintains a 
research laboratory at Spinal Care Centers in whch investigations to evaluate the neurophysiological 
effects of spinal manipulation are performed," but the record is silent as to what results the petitioner's 
research laboratory has yielded. 
- Director of the Chiropractic Clinic at the Department of Veterans Affairs Medical 
Center in Buffalo, New York, is an adjunct assistant rofessor at New York Chiropractic College, 
where the petitioner studied fiom 2000 to 2003. Dr. dstated: 
During the past 3 years, in affiliation with the Department of Defense National Naval 
Medical Center, [the petitioner] has been a key researcher in a highly promising 
collaborative neuroscience program in the national capital area involving studies on the 
spine and back pain. 
[The petitioner's] research requires a high level of scientific and technical expertise. He 
has played a critical role in conducting experimental advances with new technologies 
that will llkely play a role in the future of back pain, as well as conducting outcomes 
research and studies on mechanism of action. Judging both fiom my personal 
observations, and his achievements in research, it is clear that [the petitioner] has made 
important contributions in the field of spine research. 
As [the petitioner's] research progresses, I anticipate a number of vital benefits to flow 
to the United States. [The petitioner's] efforts play a critical role in establishing a 
Defense Spine Center that will consolidate military research efforts in partnership with 
Conemaugh Health Systems. This combined approach will facilitate the dual goal of 
eliminating back pain as a major cause of morbidity in the civilian population at large 
and as a major factor degrading the readiness of the Nation's military forces. 
letter is dated August 3 1, 2005, ten months before the petition's June 30, 2006 filing date. 
Also dated well before the filing date is an October 24,2005 letter from - Director of 
Integrative Medicine at Mississauga Wellness Integrative Medical Center in Mississauga, Ontario, who 
stated: "I have worked with [the petitioner] on several projects since 2002, and feel I am qualified to 
comment on the value of his research activities." however, did not provide any details 
about the petitioner's "research activities." offered general praise for the 
petitioner's background, stating: 
Through his Post-Graduate education at an accredited and world-leading U.S. College; 
his specialized medical training at The National Navel Medical Center in Bethesda, MD; 
and his extensive research and study in the field of neuroscience; integrative medicine 
practice and model application within the clinical practice setting, he has already played 
a critical role in the direction to current and future studies in this field. . . . 
It would be deleterious to the field of Integrative Medicine and to the health and well- 
being [of] millions of American citizens if [the petitioner] did not have the opportunity 
to continue his research and clinical studies in the U.S., for whch he requires permanent 
residency. 
-1 Director of the Spine Clinic at Metmpolitano Hospital in Quito, Ecuador, has 
worked with the petitioner "on several projects." ~r. stated: 
[Tlhe preliminary results of [the petitioner's] study in asymmetry of leg length 
inequality . . . have led to the creation by [the petitioner] of Imprimis Diagnostic 
Services (IDxS), an innovative healthcare in-office service company to enhance patient 
care delivery in partnership with care providers. IDxS provides premier 
electrodiagnostic testing services to support clinical decision making, improving 
diagnostic accuracy and by providing objective clinical measures. Previously, such 
neuro-diagnostic services were only available in academic medical centers, research and 
hospital settings. 
The record contains no objective documentary evidence about IDxS. Dr. identified the 
petitioner as "Medical Director of Imprimis Diagnostic Services," but on his curriculum vitae, the 
petitioner stated that he was the "President" of that entity. 
The clinical practice of medicine lacks national scope as required by Matter of New York State Dept. of 
Transportation at 21 7. On May 30,2007, the director issued a request for evidence (RFE), stating: 
The clinical practice of chiropractic medicine would not normally meet the national 
benefit test. . . . Please submit additional evidence about the prospective research 
activities: 1) to establish the arnountlpercentage of your professional time that will be 
devoted to research . . .2) evidence documenting all current research grant funding. . . . 
Please submit any available additional documentary evidence that, as of the petition 
priority date, you had a degree of influence on chiropractic medicine that distinguishes 
you from other researchers with comparable academic/professional qualifications. The 
evidence may include, for example, copies of additional published articles that cite or 
otherwise recognize your research achievements. 
In response, the petitioner submitted a new letter fiom 
 who stated that he has invited the 
petitioner 'Yo serve as co-principle [sic] investigator with me in an important research study to assess 
the potential efficacy of neurological drug called Felbatol in patients with Lou Gehrig's disease or 
amyotrophic lateral sclerosis (ALS)." The petitioner also submitted an undated proposal for the 
aforementioned study. The petitioner submitted no evidence to show that the study had yet begun, or to 
clarify what preparations (such as obtaining funding) remained to be made before the study would take 
place. 
In his previous letter, 
 stated that he invented Felbatol before he began his 
collaboration with the petitioner. He did not, however, indicate that he and the petitioner were 
collaborating on a study of ~elbatol. It appears, therefore, that the study was not proposed until after 
the petition's filing date. A petitioner may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to USCIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comrnr. 1998); Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Regl. Cornrnr. 1971), which require that beneficiaries seeking employment-based immigrant 
classification must possess the necessary qualifications as of the filing date of the visa petition. 
Beginning a new research study after the petition's filing date does not establish the extent of the 
petitioner's research work as of the filing date. 
The petitioner also submitted a copy of a print advertisement promoting the petitioner's chiropractic 
practice. The advertisement does not mention research, but it does contain the new and unsupported 
claim that the petitioner "has served as 'Team Chiropractor' to several [unidentified] amateur, 
professional and National sports teams." 
The petitioner's submission did not address any of the concerns expressed by the director in the RFE. 
Consequently, the director denied the petition on January 24, 2008. The director noted that the record 
contains unsupported claims, such as the assertion by that the petitioner "is Board 
Certified in the field of Neurophysiology." The director found that the petitioner's work lacks national 
scope, and that "for well over four years [the petitioner] has practiced clinical chiropractic medicine in 
the United States and there is no evidence that he intends to abandon that practice, or even curtail it, to 
pursue research." The director concluded "the evidence fails to establish that the petitioner will make 
an impact beyond the patients who visit his local clinic." The director also found that the petitioner had 
not established "a record of accomplishments which set him apart fiom other state board certified 
chiropractors." 
On appeal, counsel stated that the petitioner "will serve the national interest to a substantially greater 
degree than would an available US worker having the same minimum qualifications - because under 
8 CFR 204.5(k)(3)(ii) he is exceptional." The regulation cited by counsel concerns the evidentiary 
requirements for classification as an alien of exceptional ability. Meeting those requirements, however, 
does not presumptively qualie an alien for the national interest waiver. The plain wording of section 
203(b)(2)(A) of the Act shows that aliens of exceptional ability are normally subject to the job offer 
requirement (and, hence, labor certification). Therefore, it is erroneous to assert that the petitioner 
qualifies for the waiver '%because . . . he is exceptional" as the regulations define that term. 
Counsel states: "The fact that [the petitioner] practices clinical chiropractic medicine does not exclude 
the fact that he also conducts research and records data gathered in the clinic." It is true that clinical 
practice and research are not mutually exclusive, but the petitioner must show that he has, in fact, 
engaged in significant research while operating his private practice. We reiterate, here, that the 
petitioner's own Forms 1-140 and ETA-750B did not mention research as part of his intended 
employment, and when the director specifically instructed the petitioner to explain how much of h~s 
time was devoted to research, the petitioner's response did not address the question; the petitioner 
merely identified one project that had apparently not yet begun. 
Counsel observes that it is more difficult for the petitioner to obtain research fhding as a private 
practitioner than in an academic or other institutional setting. Thls may well be true, but it is not an 
argument in favor of approving the petition. Counsel does not explain why the petitioner left a setting 
more conducive to research except to claim that the petitioner "is something of a 'maverick."' This is a 
matter of the petitioner's personal preference, not a favorable factor in adjudicating the waiver request. 
Counsel states that, while the petitioner "has but few publications as yet," he will "add more in [the] 
future," and that "he will be far more able to obtain hding for his research" after he becomes a 
permanent resident. Counsel, here, appears to argue that while the petitioner has not yet accumulated a 
significant research record, he will do so after his petition is approved. This argument is highly 
speculative and conjectural, and is not founded on any existing evidence. Assertions of prospective 
national benefit must be grounded on an alien's track record. See Matter of New York State Dept. of 
Transportation at 219. While it is true that permanent residents have opportunities that are closed to 
nonresident aliens, this applies to all nonresident aliens and is not a reason to grant a waiver to one alien 
in particular. 
The petitioner submits a copy of the office schedule fiom his web site, showing that the petitioner's 
office is open to patients 26 hours per week. Although the web site does not mention research, 
counsel claims that the office hours schedule shows that the petitioner devotes "approximately 75%" 
of his time to research. The director, in the RFE, had specifically asked the petitioner for evidence 
"to establish the arnountlpercentage of [his] professional time that will be devoted to research." The 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for 
the record before the visa petition was adjudicated. The petitioner, at that time, disregarded the 
director's request. The failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. $ 103.2@)(14). The petitioner now attempts to 
address the request on appeal (albeit by questionable inference rather than by direct evidence). The 
AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). The director correctly found 
that the petitioner failed to address this issue when directly instructed to do so. 
Page 10 
The petitioner submits various exhibits on appeal, some relating to the petitioner's credentials and 
others to general issues in the petitioner's field, but the exhibits submitted do not refute the director's 
findings or show that the director erred in denying the petition for the reasons stated in the denial 
notice. When considering the ever-shifting nature of the petitioner's claims and evidence, it is worth 
noting that the appeal apparently contains no mention of the petitioner's work with Imprimis 
Diagnostic Services. 
When the petitioner filed the appeal on February 22, 2008, the petitioner did not indicate that any 
further evidence would be submitted. Nevertheless, on March 24, 2008, the petitioner submitted 
evidence indicating that his "abstract submission titled 'Treatment of Spinal Cord Pain and Spasticity 
with Felbatol' [was accepted] for poster presentation at the third annual American Conference on Pain 
Medicine in New York City." The message conveying this acceptance was dated March 10,2008. In 
general, the evidence relating to the petitioner's research work tends to be dated either several years 
before the petition was filed, or after the director began asking for evidence of the petitioner's research 
activity. 
We stress that, while active involvement in published research would establish national scope, this 
alone cannot suffice to establish eligibility for the national interest waiver. The petitioner would still 
need to establish the significance of his published work in relation to that of others in his field. Here, 
the record (including the appeal) contains no evidence that any journal has published a full article 
(rather than an abstract) by the petitioner, and the record does not objectively establish the impact of his 
conference presentations. On the petition forms that initiated this proceeding, the petitioner presented 
himself first and foremost as a clinical chiropractor, and the record contains little credible evidence to 
contradict that characterization of the petitioner's work. 
As is clear fiom a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability, or every person qualified to engage in a profession in the United States, should be 
exempt fiom the requirement of a job offer based on national interest. Likewise, an alien's professional 
goals are not grounds for a waiver if the alien's existing record of accomplishments does not 
persuasively show that those goals are realistic. 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
This denial 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 appeal is dismissed.