dismissed EB-2 NIW Case: Critical Care Medicine

DATE: OCT 032012 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in rcaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form l-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to bc filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
'Y)Wl1du 
'Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
summarily dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § l1S3(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician specializing in critical care medicine. 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 had not established that 
an exemption from the requirement of a job offer would be in the national interest of the United States. 
8 C.F.R. § I03.3(a)(l)(v) states, in pertinent part, "[a]n officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous 
conclusion of law or statement offact for the appeal." 
On the Form I-290B Notice of Appeal, counsel checked a box reading "My brief and/or additional 
evidence is attached." Counsel did not indicate that any future supplement would follow. Therefore, 
the initial appellate submission constitutes the entire appeal. The petitioner submitted no exhibits on 
appeal except for a copy of the denial notice. 
The Form I-290B includes a space for the petitioner to "[pJrovide a statement explaining any erroneous 
conclusion of law or fact in the decision being appealed." Counsel states: 
The record ret1ects through [the petitioner's] leading roles at prominent medical 
institutions along with his history of outstanding clinical success in addition to his 
research contributions to the field of critical care medicine [that the petitioner] has 
demonstrated that (1) his work has had substantial intrinsic merit; (2) the impact of his 
work has spread beyond his hospital community and had a significant national int1uence 
in improving healthcare (numerous physicians have utilized [the petitioner's] research in 
the clinical setting, and his expertise as a clinician has reduced complication rates for his 
patients, many [of] whom are out of state); and (3) [the petitioner's] abilities are 
exceptional and stand above his peers, such that a waiver of the labor certification 
process would be in the national interest. 
Counsel does not elaborate as to the nature of the claimed "leading roles" and "research contributions." 
The director, in the denial notice, had questioned earlier, similar claims by counsel, and had found that 
"the petitioner has provided no evidence demonstrating that he developed a new procedure, technique 
or treatment," much less one that "had been significantly utilized by others in the field." Counsel 
cannot rebut the director's findings simply by repeating the vague assertion that the petitioner's work 
has been important and int1uential. 
Page 3 
In a separate statement accompanying the appeal fonn, counsel maintains that the petitioner "has judged 
the work of even senior peers" and that "there are testimonials submitted showing that he has been 
indispensable" to the university department where he worked. Counsel does not, however, allege any 
specific factual or legal errors or other deficiencies in the director's decision. Counsel merely asserts 
that, given (unidentified) "substantial evidence" of the petitioner's (unspecified) achievements, the 
director should have approved the petition. 
Counsel asserts "clear evidence was submitted showing that in particular [the petitioner] has made great 
contributions to the field through both his research work as well as clinical abilities, both well attested 
to by both his peers with whom he has worked as well as independent testimonials." The director, in 
the denial notice, acknowledged the witnesses' letters and quoted from several of them, but found that 
the letters failed to distinguish the petitioner from other qualified professionals in his specialty. Counsel 
does not address the director's concerns, instead simply repeating that the letters are in the record. 
Counsel asserts that the petitioner "is a member of the most prominent medical societies in the country." 
Counsel acknowledges that these medical societies do not require outstanding achievements as a 
condition of membership, but states that "this is the nonn." The director, however, did not raise the 
issue of the petitioner's memberships as a basis for denial. Counsel does not explain how these 
memberships establish eligibility for the national interest waiver; the prestige of a society does not 
necessarily reflect on each individual member thereof. 
In sum, counsel does not explain how the director failed to take the petitioner's previous evidence into 
consideration. Counsel does not allege any specific factual or legal errors or other deficiencies in the 
director's decision. Counsel essentially asserts that the director should have approved the petition, 
which is not a sufficient basis for a substantive appeal. 
The AAO notes that, on September 8, 2011 (five months before the filing of the appeal), an employer 
applied for a labor certification on the petitioner's behalf The Department of Labor approved the labor 
certification, and USCIS approved a subsequent immigrant petition based on that labor certification. 
Thus, the petitioner has obtained the very labor certification that he sought to waive in the present 
proceeding. The same employer also filed a nonimmigrant petition on the alien's behalf; and USCIS 
approved that petition. Therefore, the petitioner is authorized to work until July 23, 2015 for the 
employer that obtained the labor certification. By the time the petitioner filed the appeal in February 
2012, he had already moved from Louisiana to Arizona to work for this new employer. Nevertheless, 
counsel repeatedly contended that it is in the national interest to waive a requirement that the petitioner 
has already met. 
Because counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact 
as a basis for the appeal, the AAO must summarily dismiss the appeal. 
ORDER: The appeal is dismissed.