dismissed EB-2 NIW Case: Dentistry

(b)(6)
~,--,I 
l . 
U.S~ Department of Homeland Se<:urity 
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 
DATE: FEB 2 0 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: 
-PETITION: 
Petitioner: 
Beneficiary: 
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 Immigrati-on 
and Nationality Act, 8 U.S.C. § ll53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed pl~se 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 inq~iry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the-law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or amotion to reopen in 
accordance with the instructions on Form I-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 that8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
ACting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page2 
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 
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. The 
petitioner seeks employment as a dentist and assistant professor at 
New.York. 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 statement from coun8el. 
Section 203(b) ofthe Act stat~s, 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 oftheir 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. 
r The director did not dispute 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 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, lOlst Cong., 1st Sess., 11 (1989). 
(b)(6)
Page3 
Supplementary information to regulations implementing the Immigration Act of 1990, 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 ofthis.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 (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
· 1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner establish that the alien will serve the national interest to a substantially greater 
degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien wil~ in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term ''prospective" is to require future 
contnbutions 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. 
The USCIS regulation at 8 C.P.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 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 filed the Form I-140 petition on June 14, 2011. In an accompanying statement, 
counsel asserted: 
The expansive scope of [the petitioner's] salient contributions encompasses not only 
her immediate fields of Dent~stry and Pediatric Dentistry, but also the medical 
community at large, both nationally and internationally. Her research and work with 
federal health shortag~ areas has already had a direct impact on the field and has 
gained her nationwide recognition .... 
(b)(6)
Page4 
In the labor certification process, the Department of Labor stipulates that the 
· employer describe its job opportunity without ''unduly restrictive" requirements 
[22 C.F.R. sec. 656.2l(b)(2)]. The employer's requirements must conform to ~he 
standard job classifications set forth in the Dictionary of Occupational Titles and the 
requirements must be those formally required for the job in the United States. These -
conditions fall short in consideration of the nature of [the petitioner's] work in 
Dentistry with specialization in Pediatric Dentistry, because the factors relating to this 
scientific technique· transcend the "context" of any specific employer's ''business" 
operation .... As a dentist,Jthe petitioner] is·directly responsible for bettering the 
lives of her patients. Such skills cannot be measured in th~ context of business 
necessity. 
(Counsel's emphasis.) Chapter 22 of the Code of Federal Regulations deals with "Foreign 
Relations"; there is no 22 C.F.R. § 656. Counsel appears to refer to the regulation at 20 C.F.R. 
§ 656.21 (b )(2), which deals with labor certification. Though subsequently revised, that regulation 
used to read: ''The employer shall document that the job opportunity has been and is being 
described 
without unduly restrictive job requirements." The reference to ''business necessity" appears to relate 
to the former regulation at20 C.F.R. § 656.2l(b)(2)(ii), which read: 
If the job opportunity involves a combination of duties, for example engineer-pilot, 
the employer must document that it has normally employed. persons for that 
combination of duties and/or workers customarily perform the combination of duties 
in: the area of intended employment, and or the combination job opportunity is based 
on a business necessity. 
The regulation mentioned ''business necessity" specifically in relation to a combination of duties, 
which the petitioner has not claimed in this proceeding. Counsel did· not explain how .dental skills 
"cannot be measured in terms of business necessity," when an employer that provides or teaches 
dental. care can presumably require its job applicants to have certain necessary skills in those areas. 
Counsel cited a decision by the Board of Alien Labor Certification Appeals (BALCA) to support the 
claim that a labor certification application for the petitioner would likely be denied. as ''unduly 
restrictive." The inability to obtain a labor certification would not, by itself, be a deciding factor in 
_ the petitioner's favor. The wording of the statute makes it clear that exemption from the job offer 
requirement rests on the national interest, not on an alien's inability to obtain a labor certification. 
Even so, the cited materials do not strongly support counsel's assertions. In the cited administrative 
decision, BALCA ruled: c. 
This Panel finds the unqualified term "artistic ability" to be vague and subjective 
without any guidelines or criteria available to determine whether an applicant is 
qualified for the position. Accordingly, the special requirement of artistic ability is 
unduly restrictive under §656.21 (b )(2), because the Employer has rejected otherwise 
qualified u.s. workers based on this vague, subjective requirement. 
(b)(6)
Page5 
Michael Graves Architect, 89-INA-131, 1990 WL 300112 (Bd. Alien .Lab. Cert. App. Feb. 21, 
1990). BALCA found that "artistic ability" is subjective and difficult to "quantify ... in terms of 
length of training or experience." !d. Counsel sought to compare the vaguely~defined "artistic 
ability'' in Michael Graves to the present petitioner's "ability to master state-of-the-art technologies 
and complex research techniques," and contended that the petitioner's "scientific ingenuity cannot 
. be quantified because her exceptional skills are contingent upon her specialized knowledge of 
treatments and therapies." Counsel did not explain how "specialized knowledge of treatments and 
therapies" correlates to "scientific ingenuity." If the petitioner did not, herself; innovate the 
''treatments and therapies," but instead learned them in the course of her own education, then her 
knowledge of those methods is not a matter of "ingenuity" {defined as "inventive imagination or 
skill"). Webster's II New College Dictionary 569 (2001). Special or unusual knowledge or training,. 
while perhaps attractive to the prospective U.S. employer, does not inherently meet the national 
interest threshold. NYSDOT,·22 I&N Dec. 221. 
Counsel stated: ''The sustained national acclaim [the petitioner] has received for her contributions in 
the field is evidenced by the numerous independent letters of support she has received from top 
experts nation" [sic]. It is not clear whether counsel meant to say that the letters are from the ''top 
experts in the nation," or from ''top experts across the nation." In point of fact, all of the witnesses 
are in the New York area or have demonstrable ties to the petitioner, and the petitioner has not 
established their status as ''top experts," however defined.·· · 
Like the petitioner, graduated from the 
ofDentistry in 2005. Regarding her former classmate, stated: 
[The petitioner's] vast knowledge of dental medicine has been reoognized by her 
colleagues who consider her to be one of a very few at the top of her field. 
Throughout her career,~ [the petitioner] has been singled out for her abilities and 
accomplishments in all of her roles as an outstanding dentist. 
School 
did ·not provide any specific information to support the very general claims stated above. 
Instead, she listed the petitioner's duties (which appear to constitute the typical duties of a dentist) 
and provided details about her treatment of one particular patient. also stated that the 
petitioner "is a member of the American Dental Association. . . . lvlemoersnip in each of these 
I . 
organizations requires extraordinary credentials in the dental field and serves as a testament to [the' 
petitioner's] status as an elite dentist." Despite using the phrase "each of these organizations," 
named only one organization. The reoord contains no evidence to support the claim that 
membership in the American Dental Association "requires extraordinary credentials in the dental 
field." Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedmgs. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Co:riun'r 1972)). · 
(b)(6)
Page6 
co-president of was studying for a master's degree in public 
health at when she wrote her letter in July 2010. stated that the 
petitioner "has gained widespread recognition in the dental community." praised, but 
did not identify or describe, the petitioner's "outstanding contributions to the field of dentistry at 
large." 
'of. Massachusetts, has "come to know [the 
petitioner] through [their] association at the 
praised the petitioner as "an asset to her community" but did· not. repeat 
the 
claims of other witnesses that the petitioner has earned ''Wid~spread recognition." 
assistant director of the New York, claimed no 
credentials ~ dentistry. Rather, she is a registered nurse. Therefore, the record offers no reason to 
call her a ''top expert" in the petition,er's field. stated that the petitioner "has gained a 
reputation as the dentist to call in the most complex dentistry cases." As with other witness letters, 
the record.contains no specific, verifiable evidence to support this vague assertion. 
The record contains ample documentation arising· from the petitioner's graduate studies, dental 
practice, and teaching duties, but no objective evidence to show that the petitioner's efforts have had 
particularly significant impact or influence on the field of dentistry at large. 
On November 21, 2011, the director issued a request for evidence. The director acknowledged that 
the petitioner.'~s witness letters "state[ d] that the petitio her has distinguished herself:" but ''there was 
not detailed information provided to establish those claims." The director also stated that the 
petitioner's claims lacked sufficient corroborating evi<I:ence. 
In response, oounsel asserted: 
The materials originally submitt~ and ·additional materials attached in the following 
pages provide clear evidence that [the petitioner's] knowledge and skills are unique. 
Testimonials from renowned experts, who .are considered the foremost leaders in their 
fields, agree that her expertise, research advancements and leadership in the field of 
Dentistry have set her apart from others and have already· had a national influence. 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n:2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel's vague claims about previous vague 
claims add nothing of weight to the record. 
In another example out of numerous unsupported claims, counsel stated that the petitioner's "further 
research is highly likely to help numerous patients worldwide, based on her demonstrated record of past 
successes." Counsel did not elaborate on the petitioner's "past successes" in "research." 
(b)(6)
Page7 
The petitioner signed a statement indicating that she provided "free dental services in 
to the uninsured and underinsured population." The benefit 
arising from clinical patient care is largely restricted to the individual patients; it does not result in wider 
impact or influence. It do.es not appear that the petitioner herself actually wrote this statement, because 
another passage reads: "As an Assistant Professor in the Department of ........... I both reduce the 
shortage of dental faculty ... and prepare the next generation of oral health professionals." This use of 
a blank space, apparently to be filled in later, indicates tha(whoever wrote the statement did not know 
which department employed the petitioner: 
The statement indicated that is ... considered as [a] Federal Dental Health 
Professional Shortage Area" A local worker shortage does not justify a waiver of the labor certification 
process, because that proCess is itself designed to address such short~;tges. Congress created a special 
statutory provision for certain physicians in shortage areas, but those physicians do not qualify for the 
waiver simply by declaring .their intention to work in shortage areas. Rather, they must meet specific 
requirements set forth in section 203(b)(2)(B)(ii) of the Act, and the regulations at 8 C.F.R § 204.12. 
Congress created no parallel program for dentists, and there is no reason to conclude that dentists, 
unlike physicians, can simply declare an intention to work in a shortage area rather than prove (through 
the labor certification process) an actual unfilled demand for their services. 
Professor senior associate dean of Student and Alumni Affairs at 
stated that the petitioner has taught students who went on to 
''work in over 40 states," thereby giving her work national scope. The petitioner can only teach a 
finite number of students; their subsequent dispersal across the United States dilutes rather than 
expands the petitioner's impact as an educator. · 
A section of the response, labeled "Membership in Prestigious Societies," ooncerns two such 
memberships. The submitted evidence does not mention . the American Dental Association, 
previously held forth as the sole example of an organization that "requires extraordinary credentials 
in the dental field." A letter dated February 10, 2011 stated that the petitioner "has been selected for 
inclusion in America's R~gistry of Outstanding Professionals .... [S]he. met the criteria for 
membership by being in the top 10% of all applications in the .field of dentistry." The record 
contains no other information or evidence regarding the Registry._, 
The other documented membership is in the The letter from that 
organization shows that the petitionerJwas admitted on January 24, 2012, more than seven months 
after she filed the. petition.. An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time offiling theberiefit request. 8 C.F.R § l03.2(b)(l). USCIS cannot 
properly. approve the petition at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ). Even 
then, the record says nothing about the Academy's membership requirements. · Without such 
information, the documentation of the petitioner's membership is oflittle consequence. 
(b)(6)
Page 8 
The petitioner has labeled another section of the-record "International Acclaim." The materials in 
this section consist of an opinion piece that the petitioner wrote in the February 7, 2012 issue of 
a printout of a January 2012 electronic mail conversation between the petitioner and 
regarding the petitioner's ''recommendations to increase access to care in the remote 
areas of Punjab"; and a printout of another January 2012 electronic mail conversation between the 
petitioner and a faculty member regarding ''the possibility of an epidemiologic 
study of dental caries." All of this evidence originated after the petition's filing date (and after the 
November 2011 issuance of the request for evidence), and none of it has any apparent relation to 
"international acclaim" of the petitioner. 
The director denied the petition on October 19,2012, stating 
that the petitioner had not distinguished 
herself from others in her field to an extent that would warrant the special benefit of the national 
interest waiver. The director discussed the petitioner's membership information from the two 
aforementioned organizations and · information about her past work ;history, and found the 
petitioner's evidence to be insufficient to justify approval of the petition. · 
On appeal, counsel states: 
It is precisely because ·of [the petitioner's] national influence she has demonstrated 
achievement to a greater extent than U.S .. workers having the same qualifications 
practicing in Dentistry .... [The petitioner] is 'in fact reaching countless communities 
and specialists in the field throughout the country. She is therefore having a profound 
and direct impact in her field above her peers in Dentistry. 
The above quotation continues a pattern throughout the record, in which counsel and various 
witnesses repeatedly emphasize the petitioner's impact on her field without ever explaining what 
that impact is, or producing any meaningful evidence of that impact. Repetition is no substitute for· 
corroboration. It is true that some of''the support letters ... show that [the petition~r] has d·eveloped 
a national reputation as such a talented dentist," but it does not follow that those letters ate well­
documented or credible. One of those letters also indicated that "[m]embership in [the American 
Dental Association] requires extraordinary credentials." If that claim is true, then evidence to that 
effect should.be readily available.· If it is not true, then the witness letter contains false mformation 
and therefore is not credible. The petitioner has submitted no evidence to show that this claim is, in 
fact, true, and there is no reason to conclude that any other witness's claim is more credible than that 
' particular claim. As noted previously, most of the witnesses' claims are very general and vague. 
Counsel contends that the labor certification process "is not able to take into consideration the 
unique skills ~hat [the petitioner] has developed as a dentist, the tremendous national impact of the 
work that she has performed, and the reputation that she has sustained amongst her peers nationaliy." 
This statement assumes key claims that the petitioner has yet to substantiate. Rather than provide 
any supporting evidence on appeal, counsel claims that such evidence ''was [already] submitted." 
The record does contain a sizeable quantity of evidence, but that evidence establishes little more than 
(b)(6)
•' . .. "' 
rage':J 
the petitioner' .s basic credentials as . a dentist. The assertion that the petitioner is :a nationally 
recognized figure in her field remains uncorroborated and therefore lacking in credibility. 
' 
As is clear from a plain reading of 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 individmil. alien. 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 
interestofthe United States. · 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S. C. § 1361. The petitioner has not sustained that burden. 
ORDER: · The appeal is diSmissed. 
' '