dismissed EB-2 NIW Case: Dental Research

(b)(6)
DATE: 
NAY 2 7 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. C[tizenship and Immigration Service� 
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 is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
gi� �on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office 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. According to 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker (Form I-140), the petitioner seeks 
employment as a "Teaching Assistant and Researcher." At the time of filing, the petitioner held such a 
position 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 two briefs with supporting exhibits. 
I. Relevant Law and Regulations 
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. 
Neither the statute nor the pertinent regulations defme 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, lOl st Cong., 1st Sess., 11 (1989). 
(b)(6)
NON-PRECEDENT DECISION . 
Page 3 
In reNew York State Dep't of Transportation, 22 J&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 beneficiary 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. Jd. Finally, the petitioner seeking the waiver must establish that the 
beneficiary will se1ve the national interest to a substantially greater degree than would an available U.S. 
worker having the same minimum qualifications. Jd. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the beneficiary 's past record justifies pro jections of future benefit to the national interest. Jd. at 
219 . The petitioner's assurance that the beneficiary 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 beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievem ents, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
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 offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability . Therefore, whether a given individual seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. See 
NY'SDOT, 22 J&N Dec. at 218-19. 
The record reflects that the petitioner qualifies as a member of the professions holding an advanced 
degree. The sole issue in contention 1s whether the petitioner has established that a waiver of the job 
offer requirement, and thus a labor certification, is in the national interest. 
II. Facts andAnalysis 
The petitioner received the foreign equiv�lent of a DDS degree in 2005, and earned a Ph.D. in Food 
and Nutrition from in 2011. The petitioner filed the Form I-14 0 with 
supporting evidence on December 26, 2013, at which time he was pursuing a master's degree in 
periodontolog {and craniofacial biology at The petitioner indicated that his research focuses 
on dental biomaterials and the improvement of dental treatment and care. An introductory letter 
accompanying the petition stated that the petitioner is "at the forefront of his field in dental 
biomaterials and research," and that he has been "widely published" in "leading national and 
international journals' ' in addition to presenting his work at national and international con ferences. 
The petitioner submitted copies of five published journal articles that he authored or co-authored, 
copies of four "in progress" papers yet to be published, and evidence that he presented his work at 
conferences. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
The pe ti tione r' s introductory letter also stated that he is responsible for several innovations that have 
"advanced the frontiers of knowledge in the dental and periodontal fields." As evidence of the 
sig nificance of the petitioner's innovations, the petitioner submitted five letters from faculty 
members at , and a letter from a faculty member of for 
Medical Sciences with whom the petitioner has previously collaborated. The letters descr ibed the 
petitioner's research work in the dental and medical fields, identifying what the authors deemed to 
be his most significant achievements. 
In a November 8, 2013, letter, Dr. stated that the petitioner "is best 
known for his de velopment of a demineralized dentin matrix material used for dental implant 
placement and a patent application is in process for this work." Dr. stated that the new 
material "is safer, stronger and cheaper than the currently used materials," and that it also "triggers 
the body to build new bone around the material." The petitioner did not submit documentary 
evidence to support Dr. statement regarding a patent app lica tion. Further, while.several 
other letters also praised the petitioner's development of this material and stated that it offers 
advantages over other bone grafting mater ials, none of the letters specifically indicated whether the 
material was currently being used in the fi eld or by other researchers. 
The submitted letters from faculty members at di scussed additional dental research performed 
by the petitioner, including his research on nerve growth factors in the regeneration of nerves that 
are damaged during dental procedures. In a December 5, 2013, letter, Dr. stated that 
the petitioner artificially manufactured a nerve growth hormone normally active only during 
adolescence, and put it into a virus to allow for slow release of the hormone. Dr. called this 
research "brilliant," and stated that the peti tio ner' s work is "on the cutting edge of technological 
advancement." In a separate letter, dated December 13, 2013, Dr. stated that 
this and other research endeavors "have made significant contributions to the dental field and are 
likely to impact the clinical practice of dentistry." None of the letters described what effect, if any, 
the petiti oner' s findi ngs have already had on dental research or the practice of dentistry. The 
remaining letters focused mainly on the petitioner's medical research conducted pursuant to his 
Ph.D. in Food and Nutrition , attesting to the importance of his findings on various topics without 
specifically describing what influence those f i nd ings have had on the field. 
In addition, the petitioner submitted ev idence of awards and scholarships that he has received from 
and a Certificate of Appreciation from the 
recognizing the petitioner's "scientific contribution as a speaker" at a conference. The 
petitioner also submitted copies of emails from journals inviting the petitioner to review 
manuscri pts, ev idence that he has served as a contributing editor for the 
_ and documentation of his membership in several professional 
organizat ions. The petitioner further submitted three email communications from an 
online professional network for scientists and researchers, each noti fying him that an individual had 
requested one of his art icles and inviting him to upload a full-text version of the article to his online 
profile. F inally, the petitioner submitted media articles and reports from U.S. government agencies 
regarding the importance of oral health care as a public health issue. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
In a request for evidence (RFE) issued on July 7, 2014, the director requested further evidence to 
establish that a waiver of the job offer requirement is in the national interest. The director requested 
that the petitioner submit "further evidence of [the petitioner's] research accompl ishments" and 
influence on the field, including evidence of citation of the petitioner's published work. The 
petitioner's response to the RFE did not include evidence relating to the citation of his work. Rather, 
the petitioner submitted additional letters, incl uding new letters from the two faculty members 
who previously wrote on his behalf, Dr. and Dr. 
Both of these individuals stated that the petitioner receives invitations from journals to submit 
research findings for publication, and that such invitations are unusual and indicate recognition of 
the petitioner's acclaim and his ma jor contributions to the field. 
The petitioner submitted copies of emaile d invitations for submission of manuscripts from six 
journals, 
and 
As all of the emails were dated after the filing of the petition, they do 
not establish the influence of his work at the time of filing the petition. The petitioner must establish 
that he is eligible for the requested benefit at the time of filing the benefit request. 8 C.P.R. 
§ 103 .2(b )(1). users cannot properly approve the petition at a future date after the petitioner 
becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Cornm'r 1971 ). Further, while each of the emails was addressed to the petitioner by name, none 
referenced his work specificall y. The email from dated 
. 2014, stated: "Considering your expertise in this field, [we] would like to invite you to 
submit related papers to us .... " Another email, dated May 23, 2014, with the heading "Call for 
Papers," began: "A dvances in Enzyme Research (A ER) is very interested in your study. If you have 
unpublished papers in hand and have the idea of making our journal a vehicle for your research 
interests, please feel free to submit your manuscripts to this journal. ... " The petitioner did not 
submit evidence regarding the number of individuals who received invitations from these journals or 
the criteria on which the invitations were based. 
The petitioner also submitte d letters from two in dividuals outside of the universities at which he has 
studied. In a July 25, 2014, letter, Dr. _ of the described the 
importance of the petitioner's research topics, and stated that "he is widel y recognized for his 
published work and that his contributions to his field of science are significant with regards to the 
treatment and care of patients wi th osteoporosis and bone disorders." Dr. state d that the 
petitioner's expertise in nutritional science, specifical ly his research into bone-related topics, is 
relevant to his current research in the dental field. In a July 26, 2014, letter, Dr. of 
the stated that the petitioner has made "critical advancements" to the field of 
nutritional sciences. Dr. described the petitioner's research into the role of cadmium in bone 
loss and fractures and stated, "It was a result of [the petitioner's] work in this area and other 
scientists like him that cadmium is listed in the ' Dr. 
further stated: 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
In fac t and because of his discoveries not only in metal toxicity but also in the field of 
protective bioactive food components and therapeutic advances in bone physiology, 
medical doctors can now specifically treat diseases, such as osteoporosis and 
osteoarthritis, by manipulating metabolic pathways controlled by dietary bi oactive 
nutrients and other cellular signaling molecules. 
In response to the RF E, the petitioner also submitted evidence of additional papers that he has 
published and presented since filing the petition, as well as recent re quests for him to serve as a peer 
reviewer for journals. As stated above, eligibility must be established at the time of filing. /d. 
The director denied the petition on September 4, 201 4 , in part finding the evidence insufficient to 
demonstrate that the benefits of the proposed employment would be national in scope_ The director 
stated that he did not dispute that "the [petitioner 's] services are beneficial to his institution and its 
students and research," but that the petitioner had not demonstrated "any measurable influence on the 
field at the national level." The first and second prongs of the NYSDOT analysis relate to the proposed 
occupation, rather than the individual who will be working in that occu pation. As we find that the 
proposed benefits of dental research are national in scope, we therefore withdraw the director's 
finding with regard to the second prong of NYS DOT. We conduct appellate review on a de novo 
basis. See Siddiqui v. Holder, 67 0 F.3d 736, 741 (71h Cir. 201 2); Soltane v. DOJ, 38 1 F_3d 143, 145 
(3ct Cir. 2004); Dor v. INS, 891 F.2 d 99 7, 1002 n.9 (2ct Cir. 19 89). 
In denying the pet ition, the di rector also found that the petitioner had not established that the national 
interest would be adversely affected if a labor certification were re quired. The di rector listed the 
documents submitted by the petitioner and stated that the petitioner did not submit supporting 
documentary evidence to "establish their significance and how they are indicative of the petitioner's 
influence on the field of teaching and research." The director noted that the submitted letters "are 
from individuals who are professionally acquainted with the petitioner. " The director concluded that 
the record did not establish that the petitioner has had an impact on his field. 
The petitioner states on appeal that he has established his influence on the field through his 
submission of letters from leading experts, his publications and presentations, and the invitat ions he 
has received to serve as a reviewer for journals, to speak at conferences , and to submit papers for 
publication. 
Regarding the submitted letters, the petitioner states that the letters are evidence that the petitioner's 
innovations and findings have impacted his fi elds of research. The petitioner contends that the 
director improper! y discounted the letters "as if [he is] saying the authors have lied about [the 
petitioner's] accomplishments because they are ac quaintances." As discussed above, the submitted 
letters included descriptions of, and praise for, the petitioner's work. However, with the exception 
of the letter from Dr. the authors did not specifically identi fy ways in which the petitioner's 
work has affected clinical practice or the work of other researchers. Further, none of the letters were 
accompanied by documentary evidence to support the assertions regarding the significance of the 
beneficiary's work. Statements made without supporting documentation are of lim ited probative value 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
and are not sufficient to meet the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 15 8, 165 (Comm'r 1998 ) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 19 72 )). 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 
198 8 ). However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. 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 give less weight to an 
opinion that is not corroborated. 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 "). 
In a brief submitted on appeal, the petitioner describes eleven "research innovations that [he] has 
contributed to the public health and dental fields." He states that these "research discoveries are 
contained and explained in [the petitioner's] publications and presentations." While the submitted 
publications and presentations support the petitioner's statements regarding the nature and subject 
matter of his research findings, they do not, by themselves, demonstrate the significance of those 
findings. The petitioner did not submit evidence regarding the citation of his work by other 
researchers, as requested in the director's RFE, to support the assertions that his innovations have 
had some degree of influence on the field as a whole.1 As discussed above, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. See Matter ofSoffici, 22 I&N Dec. at 165 . 
The petitioner asserts on appeal that his influence on the field is further established by the invitations 
he has received to serve as a reviewer for journals, to speak at conferences, and to submit 
manuscripts for publication in journals. Regarding his role as a peer reviewer and a contributing 
editor, the petitioner states: "Only a top expert would be asked to review the work of others in the 
field." He further states: 
The fact that [ the petitioner] is recetvmg invitations to publish and speak is 
recognition of [his] standing in his field, an acknowledgement that other professionals 
find him to be a leader in this field and the importance of his research findings. A 
minimally qualified applicant does not receive such invitations .... It is highly 
unusually [sic] for a journal to INVITE someone to submit a paper for publication. 
Many of the invitations submitted by the petitioner post-date the filing of the petition and therefore 
cannot be used to establish his influence on the field at the time of filing. 8 C.F.R. § 103.2 (b)(1 ). 
Regardless, while two of the submitted letters assert that invitations to submit manuscripts are 
noteworthy, the record does not include sufficient documentary evidence to establish the uncommon 
t A search on Google Scholar indicates that the petitioner's published work had one independent citation at 
the time of filing the petition, and that his work has been cited a total of eight times to date, including at least 
one self-citation. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
or significant nature of the specific invitations the petitioner has received, or the criteria on which 
they were based. See Matter of Soffici, 22 I&N Dec. at 16 5. 
III. Conclusion 
The petiti oner 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. 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 beneficiary 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 seeking the waiver. On the basis of the evidence submitted, the petition er has not established 
that a waiver of the requirement of an approved labor certification will be in the national interest of the 
United States. 
We 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.