dismissed EB-2 NIW Case: Health Informatics

FILE: LIN 03 138 52946 Office: 
IN RE: Petitioner: 
Beneficiary: I 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
NEBRASKA SERVICE CENTER Date: 6FR 9 I; 7nnr. ! LY 4 t~ CUUJ 
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. 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 
t& office that originally decided your case. Any further inquiry must be made to that office. 
I Administrative Appeals Office 
LIN 03 138 52946 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office 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. 9 1 1530>)(2), as a member of the professions holding an advanced degree. 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. 
On appeal, counsel stated that the director applied the wrong standard and was biased. 
Section 203(b) of the Act states in pertinent part that: 
(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 requirement 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 holds a Bachelor of MedicineIBachelor of Surgery from Nagpur University and a Master's degree 
in Health Informatics from the University of Alabama. The petitioner's occupation falls within the pertinent 
regulatory definition of a profession. The petitioner thus qualifies as a member of the professions holding an 
advanced degree. The remaining issue 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 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). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service 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 quali@ as "exceptional."] The burden will rest with the alien to establish that 
LIN 03 138 52946 
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exemption from, 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 Dep 't. of Transp., 22 I&N Dec. 2 15 (Comm. 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 seehng 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. 
According to his resume, the petitioner worked as a physician dia from 1992 to 
1995. The petitioner did not provide his job title for his position a where he "attended 
rounds" or at where he "followed room through the -- 
towards his Master's degree in ~ealth Informatics, the petitioner worked at 
as an Echocardiography Research and Health Informatics Consultant. At the time 
as a data management specialist for Alegent Health. In response to the 
director's request for clarification regarding the petitioner's occupation, counsel asserted that the petitioner 
was doing his family practice residency with ~reighton University Medical Center. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). While the petitioner submitted three letters from Creighton 
University, none of them indicate the position the petitioner currently fills. Counsel further stated that the 
petitioner "has conducted research in the past and is anticipating more scholarly works in the future." 
All of the areas in which the petitioner has worked are areas of intrinsic merit. Not all of these areas, 
however, produce benefits that are national in scope. Matter of New York State Dep 't. of Transp., provides 
the following examples of intended 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 
negligble. 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 thls provision of the Act. 
Based on this logic, the benefits of a practicing physician or surgeon are not national in scope as defined 
above. We acknowledge that several of the witnesses and some of the materials in the record suggest a 
shortage of physicians who specialize in head and neck surgery. As of November 12, 1999, Section 203(b) of 
the Act specifies that doctors worhng in underserved areas are eligble for the national interest waiver provided 
they meet certain requirements. The petitioner does not assert that he will be worhng in an underserved area and 
does not submit the documentation required under 8 C.F.R. 3 204.12(c). We further note that the commentary to 
the relevant interim regulations, at 65 Fed. Reg. 53889 (2000), provides: 
LIN 03 138 52946 
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While the statutory language says "any physician," the Service notes that HHS currently limits 
physicians in designated shortage areas to the practice of family or general medicine, pediatrics, 
general internal medicine, obstetrics/gynecology, and psychiatry. Unless HHS establishes 
shortage areas for other fields of medicine, only these fields of medicine are covered by thls rule. 
As the petitioner's claim to eligibility is based on Section 203(b)(2)(B)(i), not (ii), we must evaluate his claim 
pursuant to Matter of New York State Dep't. of Transp., 22 I&N Dec. at 215. Under that analysis, as 
discussed above, merely working as a physician or surgeon is not sufficiently national in scope. Moreover, 
the issue of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. Id. at 221. Thus, we cannot consider any shortage data. Moreover, such data would 
not transform the benefits of a practicing surgeon or physician from local to national. 
The petitioner's job duties as a data management specialist included supporting Alegent's performance 
improvement process, regulatory compliance, patient safety and risk reduction "for the system." The 
petitioner also was responsible for improving the quality and cost efficiency of data management systems. 
The petitioner also designed, maintained, updated and trouble shot the employer's computer systems. These 
duties suggest a purely local benefit to Alegent Health System and its patients. Initially, counsel asserted that 
the petitioner "has developed [a] website on the Health Informatics server." The record contains no evidence 
that this site is routinely relied upon by hospitals beyond the petitioner's employer. Thus, its potential for a 
national influence is unknown. 
We acknowledge that the petitioner has participated in medical research. We have never disputed the 
potential for national impact of medical research. In light of the above, this research must form the sole basis 
for our analysis below. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than 
an available U.S. worker with the same minimum qualifications. 
As briefly addressed above, the petitioner submitted witness letters and other materials attesting to a shortage 
of physician-scientists. Several witnesses attest to the unique nature of the petitioner's multidisciplinary skills 
and clinical experience with echocardiography. It cannot suffice to state that the alien possesses useful skills, 
or a "unique background." Special or unusual knowledge or training does not inherently meet the national 
interest threshold. The issue of whether similarly-trained workers are available in the U.S. is an issue under 
the jurisdiction of the Department of Labor. Id. at 221. Simple exposure to advanced technology is similarly 
insufficient. Id. Nothing in the legislative history suggests that the national interest waiver was intended simply 
as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. 
Id. at 223. On appeal, counsel discusses the inapplicability of the labor certification process for physician 
scientists. Even if true, the inapplicability or unavailability of a labor certification cannot be viewed as sufficient 
cause for a national interest waiver; the petitioner still must demonstrate that the self-employed alien will serve 
the national interest to a substantially greater degree than do others in the same field. Id. at 2 18, n. 5. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position sought. In 
other words, we generally do not accept the argument that a given project is so important that any alien 
qualified to work on this project must also qualify for a national interest waiver. At issue is whether this 
petitioner's contributions in the field are of such unusual significance that the petitioner merits the special 
benefit of a national interest waiver, over and above the visa classification he seeks. By seeking an extra 
benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of 
achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. 
LIN 03 138 52946 
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- Director of Nuclear Medicine at Creighton University Medical Center, asserts that the 
petitioner has "conducted numerous pioneering researches [sic] in the area of Echocardiography." - 
e of ths work other than to assert that it has been "cited numerous times. 
Another referenc one of the petitioner's collaborators on several of his case studies, provides 
"has performed pioneering research in the 
o-Director of the Diabetes Institute at the Ochsner 
Clinic has demonstrated that transesophageal 
echocardiograms (TEE) can detect atherosclerotic lesions in the thoracic aorta that can lead to strokes. 
The petitioner's actual citation record does not reveal "numerous" citations of his work. The petitioner submitted 
evidence that eight of his case studies on TEE have been cited, with seven being the most cites of any one article. 
A closer look at the citations, however, reveals tha 
- 
a coauthor, is the author of all seven articles that 
cite the petitioner's 2001 article on left vertebral enes in chocardiography. Self-citation is a normal and 
expected practice, but it cannot establish the petitioner's influence beyond his own circle of colleagues. The only 
article to receive more than a single independent citation is the petitioner's 2000 article on coronary arteries in 
Echocardiography, which three independent research groups have cited. Three citations are not significant. 
Moreover, as noted by the director, the citation of the petitioner's 2000 case study on TEE 
analysis of a descending aortic aneurysm merely cited the study as an example of a 
procedure the author declined to use because of the risk to. the patient. Counsel responds that new procedures 
have risk and that there are positive aspects to TEE. We concur with counsel and note that - 
acknowledges that TEE "is frequently used intraoperatively to assess cardiac function." Nevertheless, we concur 
with the director that tks article fails to establish reliance on the petitioner's work. ites the petitioner's 
work as an example of TEE's fkequent use, not to credit the petitioner with contributing to TEE's frequent use. 
Finally, the record contains no evidence that the petitioner designed TEE; rather he has authored case studies 
reporting the results of hs use of the technology. Simple exposure to advanced technology does not warrant a 
waiver of the labor certification requirement in the national interest. Id. at 22 1. 
h 
provides more detail regarding the petitioner's Health Informatics work. Specificall 
asserts t at the petitioner authored "cutting ed e articles such as 'Evaluation of 
Recognition Systems in Healthcare."' dotes that this work was cited in a progress report on 
Informatics for the National Heart Attack Alert Program published by the University of Alabama. Far from a - 
positive reference to the petitioner's project, however, the report states: 
[The petitioner] completed an independent study (HI 695) evaluating the off-the-shelf L&H 
VoiceXpress Professional (Version 4) voice recognition system. The results were not 
encouraging. There may be several reasons for the failure: the study was performed in a noisy 
computer lab without a special microphone, the Indian student's accent was too "thick," or the 
system required a much longer "training" period since we did not purchase a medical vocabulary 
with this system. In spite of our disappointment, we are not giving up on thls technology. 
The director quoted the above language as evidence that this project was not a breakthrough in the field. On 
appeal, counsel asserts that the director's use of language referencing an accent is evidence of bias. Counsel reads 
the director's quote out of context. The petitioner submitted this report as evidence of his influence in the field. 
Thus, the report's evaluation of the petitioner's work is extremely relevant. For whatever reason, this project was 
not a success and the director did not err by quoting the language confirming the disappointing results of the 
project. In fact, had the director not acknowledged the several possible external factors that may have affected 
LIN 03 138 52946 
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the results, the decision might have implicated incompetence, which would have been more prejudicial to the 
petitioner. Regardless, counsel's appellate characterization of this project, "creating a revolutionary voice 
recognition system to improve quality of medical care," is inaccurate. The report clearly states that the petitioner 
was testing a system purchased "off-the-shelf' by his employer. We fail to see how testing a voice recognition 
system developed by someone else constitutes "creation." Ultimately, whether successful or not, this project does 
not appear to have the potential for a national impact. Even if the report's evaluation had been positive, 
recognition by one's own employer is hardly evidence of an impact on the field as a whole. 
lso discusses the petitioner's expertise as a physician and his work relating to risk reduction for his 
em~lover. As stated above. while we do not question the intrinsic merit of ths work, this work has a purely local . d 
benefit. The record contains no evidence that ths work has proven influential beyond the petitioner's employers. 
otes that the petitioner is included in Americas Registy of Outstanding Professionals, has 
India Radio, received an academic award from the University of Alabama, and is a 
member of professional associations. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
First, the record lacks any evidence from the registry acknowledging the petitioner's inclusion and explaining the 
significance of such inclusion. For example, the record does not establish whether this registry is simply a vanity 
press, such as Who's Who. 
Second, the membership requirements submitted do not suggest that the petitioner was admitted as a member 
based on his contributions to the field. For example, membership in the International Society of Cardiovascular 
Ultrasound (ISCU) is open to "members of the medical community, including physicians, scientists and 
technologists who have demonstrated interest in the field of application of ultrasound to cardiovascular diagnosis 
and treatment and who have indicated their desire to be a member of the Society by payment of their annual dues 
and who fixther have been accepted for membership upon recommendation of the Board of Directors. 
Membership in the Healthcare Information and Management Systems Society (HIMSS) is open to "all 
individuals and organizations that are active andlor interest in the fields of healthcare information and 
managements systems, subject to the restrictions in HIMSS regulations and procedures." Membership in the 
American Health Information Management Association (AHIMA), an association that establishes and maintains 
standards for the initial certification and maintenance of certification of health information management 
professionals, is open to "any individuals with an AHIMA certification in good standing." The materials for the 
American Medical Directors Association (AMDA) indicate that it is a professional association for medical 
directors and physicians practicing in the long term care continuum. The materials do not reveal any exclusive 
membership requirements. Finally, membership in the American College of Medical Quality (ACMQ) is open to 
those with a medical degree, an unrestricted license to practice, and membership in a national professional 
organization. Regardless, membership in professional associations is merely one criterion for aliens with 
exceptional ability, a classification that normally requires a labor certification. Meeting one, or even the requisite 
three requirements for that classification does not warrant a waiver of that requirement. See Matter of New York 
State Dep 't. of Transp., 22 I&N Dec. at 222. 
The record confirms that All India Radio broadcast the petitioner's eight minute "talk(s) 1 short story" in 1992. 
The record, however, lacks any evidence that the subject of this talk or short story relates to the petitioner's 
research in the field that serves as the basis of the petitioner's claim of eligbility. The petitioner's cited articles 
were all published in 2000 or later. 
LIN 03 138 52946 
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With the exception of the letter from he letters submitted initially are all from the petitioner's 
immediate circle of colleagues. letters provide very similar information to that discussed above 
and need not be addressed. While oes not appear to have any connection to the petitioner, he does 
not indicate how he came to work and, more significantly, does not explain how the 
petitioner's research has influenced his own work. 
In response to the director's request for additional evidence, the petitioner submitted two letters from staff at 
Creighton University Medical Center. chairman of the Department of Family Medicine, 
focuses on the petitioner's abilities as a p ys~cian, c almlng that the benefits of this work is national in scope 
because the petitioner is teaching these skills to others. As discussed above, physicians, and teachers for that 
matter, can only demonstrate a local benefit. 
In a second letter on appeal sserts that the petitioner "has excelled b introducing to the medical world 
the technology that will future practice of medicine." 
* 
discusses the petitioner's 
"revolutionary stndes in creating 3-D and 4-D imaging for diagnosing heart isease. As discussed above, there 
is little objective evidence, such as numerous citations by independent researchers or letters from inde endent 
practitioners attesting to their use of the petitioner's work, to support ths assertion. Moreove *,her 
asserts that the petitioner "played a key role in the development of a voice recognition system aime at improving 
[the] quality of medical care." As discussed above, the petitioner's work on ths project consisted of testing a 
system developed by someone else and purchased by his employer. Even if successful, which it was not, thls 
project would not constitute "development" of such a system. ~husssessments of the petitioner's 
past work for others have somewhat reduced evidentiary value. 
the Family Practice Residency Director, reiterates the information discussed above. The 
assertions regardin the si ificance of the petitioner's citation record and radio appearances have all been 
addressed above. 
dh 
Iso discusses a recent employee award presented to the petitioner after the date of 
filing. This awar as no relevance to the petitioner's eligbility as of that date. See 8 C.F.R. tj 103.20>)(12); 
Mutter of Kutigbak, 14 I&N Dec. 45,49 (Reg. Cornrn. 197 1). 
In summary, the majority of the petitioner's work, as a physician, surgeon and consultant, does not have the 
potential for national benefits. Further, the petitioner has worked with technology developed by others: TEE and 
a voice recognition system purchased off the shelf. The petitioner did not develop either system and his work has 
not been shown to be particularly influential in the field. 
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 individual 
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 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.