dismissed EB-2 NIW Case: Family Therapy

(b)(6)
DATE: 
JUL 2 4 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland S"r.urity 
U.S. Citi?.enship and Immigration Servin 
Administrativ e Appeals Office 
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 Lo 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, filtng 
location, and other requirements . Please do not mail any motions directly to the AAO . 
Thank you, 
~~~~~~:~trat;vc Appeals Ofnce 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) 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 an alien of exceptional ability in the sciences, the arts, or 
business, and as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a marriage and family therapist. 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 and additional evidence. 
I. LAW 
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 earned a Ph.D. m Family Therapy from in 
Florida in 2011. Thus, the record reflects that the petitioner qualifies as a member of the professions 
holding an advanced degree. (An additional finding of exceptional ability would be moot.) 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. 
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Neither the statute nor the pertinent regulations define the tem1 "national interest." Additionally, 
Congress did not provide a specific definition of"in the national interest." In reNew York State Dept 
ofTransportation, 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) (NYSDOT), set forth several 
factors which must be considered when evaluating a request for a national interest waiver. First, a 
petitioner must establish that she 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 she will serve the national interest to a substantially 
greater degree than would an available U.S. worker having the same minimum qualifications. !d. at 
217-18. 
The petitioner has established that her work as a marriage and family therapist 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 she will benefit the national interest to a 
greater extent than an available U.S. worker with the same minimum qualifications. 
Although the national interest waiver hinges on prospective national benefit, the petitioner must 
establish her past record justifies projections of future benefit to the national interest. /d. at 219. The 
petitioner's subjective assurance that she 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. 
Furthermore, 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 she merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification she 
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. In evaluating the petitioner's achievements, original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. /d. at 221, n. 7. 
II. ANALYSIS 
A. National in Scope 
The petitioner filed the Immigrant Petition for Alien Worker (Form I-140) on January 13, 2014. In a 
letter accompanying the Form I-140 petition, the petitioner, through counsel, stated: 
[The petitioner] would like to provide ongoing consultation and work with school systems, 
especially the the fourth largest school district in the country, 
as an independent contractor. ... 
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* * * 
national implications. Dr. [an Associate [The petitioner's] research has 
Professor of Family Therapy at 
nationally[,] especially considering 
underserved school systems." 
noted that [the petitioner's] work is "useful and valuable 
that every state in: the Union has low income and 
A review of Dr. January 25, 2013 letter, however, indicates she was not referring specifically 
to the petitioner's "research." Rather, she was commenting on the petitioner's "skill, expertise, and 
experience" as a family therapist. Regardless, while a researcher who disseminates her 
findings in the 
field through journal publications and presentations at national conferences may produce benefits that 
are national in scope, there is n:o documentary evidence demonstrating that the petitioner will work in 
such a research capacity. Rather, the petitioner asserts that she seeks to work as a family therapy 
independent school consultant. According to the petitioner's Biographic Infonnation (Form G-325A) 
dated February 14, 2013, the petitioner was recently employed as the Lead Program Therapist at 
Florida. The "Position Swmnary" for the job states: 
"Assists in assessment and treatment planning, provides both didactic and therapeutic individual and 
group sessions to patients and families." Presently, the petitioner 
is a "Registered Marriage and Family 
Intern" with ' ;" in Florida and she specializes "in therapeutic 
treatment with adoption, medical cases (children 
and families), depression, addiction, and couples 
counseling. "
1 
Regarding the assertion that the petitioner will "work with school systems," we find that helping a 
school system allocate resources and services to troubled youth meets the "substantial intrinsic 
merit" prong of NYSDOT's national interest analysis. The record, however, does not demonstrate 
that the proposed benefits of petitioner's work as an independent school consultant or family therapist 
will be national in scope. NYSDOT provides examples of employment where the 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. 
1 
See accessed on June 25, 2015, copy incorporated into the 
record of proceeding. 
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NYSDOT, 22 I&N Dec.at 217, n.3. With regard to the petitioner's consulting work for 
she has not shown that the benefits o.f her work would extend beyond 
the school system or the students receiving her services. As the petitioner did not establish that the 
proposed benefits of her work as an independent school consultant or family therapist will be national in 
scope, the director determined that the proposed benefits of her employment did not satisfy the second 
prong of the NYSDOT national interest analysis. 
On appeal, the petitioner asserts that her "work is national in scope because low-income or 
underserved school districts suffer from the same problems." Aside from there is no 
documentary evidence reflecting that any other school systems will utilize the petitioner's family 
therapy consulting services. While the problems confronting low-income or underserved school 
districts may be national in scope, the petitioner does not explain how the proposed benefits of her 
work as a family therapy consultant will have implications beyond the school systems or families 
receiving her services. Accordingly, the petitioner has not established that the proposed benefits of 
her work will be national in scope. 
B. Serving the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications 
The remaining issue is whether the petitioner's influence on the field satisfies the third prong of the 
NYSDOT national interest analysis. The petitioner submitted various reference letters discussing her 
qualifications and activities in the field. 
Dr. , the petitioner's graduate research supervisor at states: 
[The petitioner] has completed ground breaking research on what works in low income 
schools in interviewing successful principals of at risk schools, thus 
combining her interests in leadership, education, and solution focused therapy, and this 
research project looks likely to lead to ongoing consultation and work with school systems. 
Her dissertation was our first to use the ground breaking Appreciative Inquiry methodology, 
and this has inspired several subsequent dissertations. 
As stated by the director, the Appreciative Inquiry methodology was originally "developed at Case 
' by · in the 1980s, and his published work on the 
methodology has garnered "well over 1500 citations." On appeal, the petitioner acknowledges that 
she is not the first to use the Appreciative Inquiry methodology, only that she was the first to use it at 
her university. There is no documentary evidence showing that the petitioner's dissertation has been 
frequently cited by independent researchers, that her research findings have had an impact on school 
programs outside of , or that her work has otherwise affected the field as a whole. 
Dr. further states: "[The petitioner's] work has been so important that 1 routinely teach it in 
my Systemic Family Therapy I classes, featuring [the petitioner's] research for one entire class the 
past two years (on 2012 and 2011 syllabus, and on upcoming 2013 syllabus as well)." While the 
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petitioner's work has been utilized in a course offered by her mentor and research collaborator at 
there 1s no evidence demonstrating that the petitioner's findings have influenced the field 
beyond Dr. . students at the petitioner's alma mater or 
Executive Director, Student Support Initiatives, states that she first 
met the petitioner in 2009 while serving as an Area Director of School Improvement. Ms. 
continues: 
[The petitioner] became part of my research team in the 
The main goal of the Initiative, for the 
was to coordinate community resources in the area to address issues that bar 
low-income and minority youth from succeeding academically. 
* * * 
[The petitioner] provided an eye-opening perspective to our research by having an unbiased 
opinion about the school system and dissecting educational data in order to provide school 
leaders with valuable information on what is truly working in such as a site 
based analysis of program implementation and its effect on the outcome of the program and 
staff morale. This data has served to shape our educational research-based practices allowing 
to invest in programs and school interventions that are yielding true results, 
increasing student-learning outcomes, and improving education. . 
. . Future research could 
even be replicated across the state, because the U.S. looks at Florida, Texas, and other big 
school districts to see what programs are being implemented. 
Ms. discusses how the petitioner provided valuable input and data analysis for the 
but does not provide specific examples of how 
the petitioner's work has influenced the field as a whole. In addition, Ms. asserts that 
"future research could even be replicated across the state," but there is no documentary evidence 
showing that the petitioner's work has already had such an effect. Speculation about possible future 
impact of the petitioner's work does not establish that she had already influenced the field at the time 
of filing. Eligibility must be established atthe time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter of' 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Ms. further states: 
After completion of the research project, [the petitioner] went on to write her own 
dissertation focusing on the strengths and resources of the neighborhoods in most need. Her 
dissertation has been used by educators in Professional Learning Communities - discussed, 
after its completion, in the District meetings - in order to analyze new methodology and 
remain current with educational research. 
(b)(6)
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While Ms. mentions that the petitioner's dissertation has been utilized by 
educators, there is no documentary evidence demonstrating that the petitioner's work has affected 
educational practices nationally or has otherwise influenced the field of family therapy as a whole. 
In addition, Ms. asserts that the petitioner's "unique combination of skills and 
expertise are highly unusual in comparison to others in her field." Any assertion 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. NYSDOT, 22 I&N Dec. at 221. On appeal, the petitioner 
asserts that her qualifications and job prospects are not amenable to the labor certification process. 
The inapplicability or unavailability of a labor certification, however, cannot be viewed as sufficient 
cause for a national interest waiver; the petitioner still must demonstrate that she will serve the 
national interest to a substantially greater degree than do others in her field. NYSDOT, 22 I&N Dec. 
at 218, n.5. 
, Dropout Prevention Specialist, Student Support Initiatives, states that the 
petitioner "researched the 1 to gain perspective on the programs that were working for this 
governmental agency in order to provide the School System with a framework for utilizing 
community resources within Innovation Zones for greater impact," and that "[s]ince this study, 
Broward Schools put 
in place several initiatives to address the needs of high risk and underachieving 
students in economically depressed areas." Ms. further states that the petitioner's study 
"serves as a guide for what works, therefore giving schools direction on distributing resources into 
programs and strategies that will yield the best results." Although Ms. describes how the 
petitioner's study has affected initiatives for high risk and underachieving students in 
economically depressed areas, there is no evidence showing that the petitioner's work has atiected 
educational initiatives outside of or has otherwise influenced the field of family 
therapy as a whole. 
In addition, Ms. asserts that the petitioner's study "can be used as a model for education 
systems nationwide," but there is no documentary evidence reflecting that the petitioner's work has 
already had such an effect or has otherwise affected the field as a whole. 
who leads the professional 
a consulting firm, states: 
[The petitioner] completed a dissertation focused on providing schools with feedback on the 
effectiveness of school initiatives, specifically for students in low-income and underserved 
areas .... The petitioner's study[] helps schools put their time and energy into initiatives that 
will yield the best results, allowing schools to provide interventions which will rapid! y 
impact student learning. 
Ms. mentions the dissertation that the petitioner completed to earn her Ph.D. at 
There IS no documentary evidence showing, however, frequent independent citation of the 
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petitioner's work or that her findings have otherwise affected the family therapy field as a whole. 
Although the petitioner's Ph.D. research may have value to and her alma mater, any research 
must be original and likely to present some benefit if it is to receive funding and attention from the 
academic community. In order for a university, publisher or grantor to accept any research for 
graduation, publication or funding, the research must offer new and useful information to the pool of 
knowledge. Not every graduate student who performs research that adds to the general pool of 
knowledge in the field inherently serves the national interest to an extent that is sufficient to waive 
the job offer requirement. 
Ms. further states: "(The petitioner's] dissertation was the first to use the groundbreaking 
Appreciative Inquiry Methodology, has inspired several subsequent dissertations and is included in 
graduate curricula at School of Humanities and Social Sciences." 
The petitioner admits on appeal that she was not the first to use the Appreciative Inquiry 
methodology and there is no documentary evidence demonstrating that the petitioner's use of the 
method in her dissertation has been frequently cited by independent researchers, that her research 
findings have had an impact outside of or beyond Dr. students at , or that her 
work has otherwise affected the field as a whole. 
The petitioner submitted letters of varying probative value. We have addressed the specific assertions 
above. Generalized conclusory assertions that do not identify specific contributions or their impact in 
the field have little probative value. See 1756, Inc. v. US Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 
1990) (holding that an agency need not credit conclusory assertions in immigration benefits 
adjudications). In addition, uncorroborated assertions are insufficient. See Visinscaia v. Beers, 4 
F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field); Matter of Caron Jnt '!, Inc., 19 I&N Dec. at 
795 (holding that an agency "may, in its discretion, use as advisory opinions statements . 
. . 
submitted in evidence as expert testimony," but is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought and "is not required to accept or 
may give less weight" to evidence that is "in any way questionable"). The submission of reference 
letters supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the 
content of those letters as to whether they support the beneficiary's eligibility. Jd. See also Matter 
of 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"). As the submitted reference letters did not provide examples indicating that 
the petitioner's work has influenced the field as a whole, they do not demonstrate her eligibility for 
the national interest waiver. 
In addition, the petitioner submitted evidence of her Ph.D. in Family Therapy, Bachelor of Arts degree 
in Psychology, official academic transcripts, documentation reflecting her experience as a family 
therapist, and memberships in the American Association for Marriage and Family Therapy (Pre­
Clinical Fellow designation) and . Academic records, occupational 
experience, and membership in professional associations are elements that can contribute toward a 
finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), and (E), respectively. 
However, in this instance the petitioner already qualifies as a member of the professions holding an 
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advanced degree. We note that the 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. Pursuant to section 203(b)(2)(A) of the Act, aliens of exceptional ability are generally 
subject to the job offer/labor certification requirement; they are not exempt by virtue of their 
exceptional ability. NYSDOT, 22 I&N Dec. at 218, 222. 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 her field of expertise. The national 
interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. Without evidence demonstrating that the petitioner's work has affected the field as a 
whole, employment in a beneficial occupation such as a family therapist, therefore, does not by .itself 
qualify the petitioner for the national interest waiver. 
III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
benefits of the petitioner's work are national in scope, that she has influenced the field as a whole, or 
that she will otherwise serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that her 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. Although the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the petitioner must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole." NYSDOT, 22 I&N Dec. at 219, n.6. 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.