dismissed EB-2 NIW Case: Hematology And Oncology

identifying data deleted to 
prevent Ck~h'iy jnwarr~nted 
invasion of personal pnvacy 
VlJBL1C COP~ 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: SE? 0 9 20m 
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. § I 153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
&)Wfic~ 
, Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician specializing in hematology and oncology, specialties 
relating respectively to blood disorders and to cancer. At the time he filed the petition, the petitioner 
was a hematology/oncology fellow at 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 from counsel. 
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. 
(8) 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 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 tenn "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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
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 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 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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 seeking 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. 
We also note that 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 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 1-140 petition on May 18, 2009. In an effort to establish the national 
impact of the petitioner's work, counsel stated that the petitioner's "original research has already had a 
direct impact on the field and has gained him nationwide recognition." Counsel stated that the record 
contained "Letters of Support from Independent Experts Nationwide. Please note that these letters 
come from experts in the field from around the country both from institutions at which [the petitioner] 
has worked and institutions at which he has not worked." Three of the six witnesses work in New 
York, New York, the same city where the petitioner works. Also, three of the witnesses trained in 
Beirut, Lebanon, where the beneficiary earned his medical degree. 
We note that counsel, in her cover letter, italicized the names of professional societies and associations, 
which is not a standard stylistic convention. Four of the six witness letters likewise contain italicized 
names of these societies and associations. (One of the two remaining letters does not contain any 
references to such organizations.) 
As a hematology/oncology fellow at Staten Island University Hospital, [the petitioner] is 
one of the brightest and best fellows it has been my privilege to mentor. ... A revealing 
new study just released in the Journal of Oncology Practice predicts that there will be an 
"acute shortage" of over 4,000 Oncologists by the year 2020 .... These figures are 
worrisome and highlight the increasing need for physician-scientists such as [the 
petitioner] to continue his extraordinary work in this field. 
stated: 
(Emphasis in original.) A worker shortage is generally a poor argument for the national interest waiver, 
because the labor certification process exists to address worker shortages. See Matter of New York State 
Dept. of Transportation at 218. In the case of physicians, section 203(b )(2)(B)(ii) of the Act provides 
for shortage-based waivers for physicians who meet certain conditions. The procedure to apply for the 
waiver in this way is set forth in the USCIS regulations at 8 C.F.R. § 204.12. The petitioner, however, 
has made no attempt to follow that procedure. The petitioner has simply asserted that there is (or 
eventually will be) a shortage of physicians in his specialty. 
_asserted that the petitioner "has tremendous experience in leading and critical roles," but 
provided no further details to support this claim. 
_ and several other witnesses provide details of various cases the petitioner has handled as a 
c mIca p ysician, stating that this information "illustrates [the petitioner's] clinical prowess." USCIS 
does not dispute that the petitioner is engaged in the practice of medicine, including the diagnosis and 
treatment of patients. Individual, anecdotal reports, however, have limited value in this proceeding. 
There is no evidence to show that these reports are typical of patient outcome, or that the beneficiary's 
clinical interventions have attracted national attention or otherwise been national in scope. Because 
exceptional ability is not, by itself, grounds for the waiver, the petitioner cannot qualifY for the waiver 
simply by showing that he is a good doctor. 
an associate attending physician in neurology and epilepsy at SIUH, is one of three 
witnesses who no training, experience, or expertise in hematology or oncology. _tated 
that the petitioner "has attained an extraordinary high degree of expertise unmatched by even the most 
senior physicians in the and Oncology" and is "one of the leading physician-
scientists in the nation." also claimed that the petitioner has mastered a broader range of 
medical procedures than in his specialty. 
Page 5 
Simple exposure to advanced technology constitutes, essentially, occupational training which can be 
articulated on an application for a labor certification. Special or unusual knowledge or training, while 
perhaps attractive to the prospective U.S. employer, 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. Matter of New York State Dept. of Transportation at 221 
(footnote omitted). 
The third New York-based witness is ••••••• l11n assist tI t Weill Cornell Medical 
. ...:.. .... College and a graduate an University of Beirut. specialties are internal 
medicine and cardiology laims no training, experience, or expertise in hematology or 
oncology._ stated: 
I do not base my letter on personal knowledge of [the petitioner]; I base it on a review of . 
his credentials and through his stellar reputation in the field. My experience leads me to 
the conclusion that [the petitioner] is one of the top physician-scientists in the United 
States whose immigrant petition is in the national interest. 
[The petitioner] is regarded as one of the leading physician-scientists in the United 
States and one of the world's pioneering researchers in hematology and oncology .... 
[The petitioner] is among the elite few physician-scientists developing new diagnostic 
methodologies as well as treatments for blood disorders and cancer. [The petitioner] has 
been distinguished from his peers through the award of numerous leadership roles at 
prestigious institutions internationally. [The petitioner] holds a leadership role as a 
Hematology and Oncology Fellow at leading medical institutions such as_ 
North Shore Long Island Jewish System .... 
[The petitioner] has distinguished himself through membership in some of the most 
competitive medical organizations in the world. [The petitioner] is a member of the 
-:==:=~;~. ________ .and __ • 
• ' to name a few. Memberships in these prestigious organizations 
are only awarded to those physician-scientists who have attained an extraordinary level 
of expertise unmatched by the vast majority of their colleagues. Membership in these 
societies requires satisfaction of stringent requirements, applications are closely 
scrutinized and reviewed by Executive Committees for superior skill and 
accomplishment. The fact that [the petitioner] boasts membership in so many of these 
highly esteemed organizations is evidence of his superior reputation as a physician­
scientist. 
(Emphasis in original.) The record does not support the claim that the petitioner's fellowship at_ 
is a "leading position." Rather, the position amounts to advanced training under a "mentor." With 
respect to the beneficiary'S memberships in professional organizations, the record does not contain any 
documentation from the organizations themselves to corroborate _claims. 
Page 6 
Ohio, studied at the American University of Beirut at the same time as 
[The petitioner,] in my estimation, is one of a small group of the most talented 
hematology and oncology specialists in the nation .... I base my evaluation of [the 
petitioner] on his professional accomplishments that are well known in the field and a 
review of his CV, publications, and presentations. As my evaluation of [the petitioner] 
is not through personal knowledge, I can objectively state that [the petitioner] is one of a 
select group of oncologists and hematologists whose continued work in the field is 
critical in serving the national interest. 
... In accordance with his numerous leadership roles, [the petitioner] is renowned for 
his clinical expertise in oncology and hematology. He has mastered highly specialized 
procedures used in cancer therapy and ancillary illnesses for which only a few 
physicians have a collective knowledge .... 
[The petitioner] is also regarded as one of the foremost physician-scientists in the nation 
today. [The petitioner] has produced research that is both innovative and 
groundbreaking; his research has changed the lives of thousands of people across the 
country .... [The petitioner's] innovative research not only has significant impact on the 
academic and research fields, but it is changing the way clinicians treat their patients 
throughout the country. 
As with many asserted that the beneficiary's research work has been widely 
influential, but did not provide concrete information about the nature of that influence. 
like several others, simply asserted that the beneficiary was one of the top figures in his field as though 
this were a self-evident fact rather than a claim to be proved. 
an assistant professor at the University of Texas 
Houston. medical studies in Beirut overlapped the petitioner's studies in that city. Dr. 
[The petitioner,] in my estimation, is one of a small group of the most talented 
hematologist-oncologists in the nation .... I base my evaluation of [the petitioner] on his 
professional accomplishments, which are well known in the field, and a review of his 
CV, publications, and presentations. As my evaluation of [the petitioner] is not through 
personal knowledge, I can objectively state that [the petitioner] is one of a select group 
of hematologist-oncologists whose continued work in the field is critical to serving the 
national interest. Moreover, he has been awarded travel grants to present his work at 
prestigious national conferences, even winning a Certificate of Merit from the 
for his work with epidural blood patch placement and 
Page 7 
spinal anesthesia. These accomplishments, as well as those discussed herein, serve as 
objective marks of excellence recognized around the world. 
As one of the few top experts in the field of medical oncology and hematology, [the 
petitioner] has been offered numerous leading positions at prestigious research and 
medical institutions throughout the country. In fact, he was one of only 2 out of 200 
applicants selected to serve in a highly-coveted Hematology/Oncology Specialist 
[position] at - North Shore Long Island Jewish 
System. It should be noted that there are only 385 Hematology/Oncology Fellowship 
positions in the entire nation, and as such, [the petitioner's] selection for such a position 
at one of the nation's leading medical facilities is a genuine mark of distinction .... 
In addition to his clinical expertise, [the petitioner] is also recognized as a leading 
physician-scientist. ... Notably, experts are already closely monitoring the progress that 
[the petitioner] is making in this field as a result of the prolific research findings he has 
achieved in the past. 
(Emphasis in original.) ~en discussed a case in which the petitioner diagnosed 
cryoglobulinemia in a 55-year-old hepatitis C patient. several other witnesses, stated 
that his "evaluation of [the petitioner] is not through personal knowledge," but this is not the same as 
saying that he has no personal knowledge of the petitioner. 
We note that letter repeats, almost word-for-word, the entire first paragraph of Dr. 
, Jetter. This virtually identical language is beyond coincidence, and leads us to conclude that 
the same person wrote at least parts of both letters. (We will not limit the possibility of common 
authorship to these two letters.) 
The only witness with no documented ties to New York or Beirut' of the 
University of Pennsylvania. did not disclaim prior , he did 
not specifY how he knows of the petitioner and his work. Like laims no 
training, experience, or expertise in hematology or oncology; he IS a professor of radiology and 
and his university'S division chief of Neuroradiology. As with several other witnesses, 
referred to the petitioner's "a leading position" indicative of his 
"extraordinary ability as a physician-scientist." . the case of the 55-year-old 
cryoglobulinemia patient that also appeared cited "a shortage ... 
of ... specialists in Hematology and Oncology," and asserted that the petitioner is "one of the leading 
physician-scientists in the nation." Most of the assertions in letter can be found 
(worded differently) in other witness letters. 
Under the heading "Significant Contributions," the petitioner submitted copies of several "Invasive 
Procedure Tracking" forms. These appear to be standard forms, used to maintain records of procedures 
performed on patients. The petitioner did not explain how these forms document "significant 
contributions" rather than routine treatment. 
Page 8 
As evidence of his research work, the petitioner submitted copies of two published articles and two 
manuscripts. The two manuscripts do not report the results of research projects. Rather, they are case 
studies relating the treatment of individual patients. One of these case studies concerned the 55-year­
old cryoglobulinemia patient, which two supposedly independent witnesses already knew about even 
though the case study had not yet been published. 
A divider page in the record refers to "Evidence that the alien's work has been cited," but this page is 
followed immediately by another divider page for a different subject. The petitioner does not appear to 
have submitted any evidence of citation of his published work. 
Other submitted evidence included materials regarding conference presentations, memberships in 
professional associations, and background information regarding the petitioner's specialty. The 
petitioner's claims regarding the importance of this evidence, however grandiose, cannot compensate 
for the lack of independent evidence to support those claims. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Alatter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
The director denied the petition on December 1, 2009, stating that the petitioner had established the 
intrinsic merit and national scope of medical research, but had not shown that he, individually, qualifies 
for the waiver. The director acknowledged the petitioner's witness letters, but found that they did not 
establish the wider impact of the petitioner's work. The director also found that the petitioner had not 
submitted any evidence of citation of his published work, and that a subsequent search of the Google 
Scholar database showed only one citation. 
On appeal, counsel states: "Please find the attached materials, which document [the petitioner's] 
satisfaction of the required credentials for classification of extraordinary ability [sic] in the national 
interest." The petitioner submits no new "materials" on appeal except for counsel's brief, which cannot 
"document" any of the petitioner's claims, because the brief simply repeats those claims. 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 asserts that the petitioner stands out from his peers because he knows an especially broad range 
of medical procedures, and "[0 ]nly extraordinary physicians such as [ the petitioner] have the 
exceptional ability to perform such sensitive and life-altering procedures." Even if the record showed 
this assertion to be true, which it does not, counsel does not explain how the range of the petitioner's 
skills is national in scope. The impact of the petitioner's knowledge of medical procedures is limited to 
those patients whom the petitioner actually treats. 
Counsel protests that "no credence was given to the significant impact of [the witnesses'] testimonial 
letters from renowned experts in the field." The opinions of experts in the field are not without weight 
Page 9 
and have been considered 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. 
1988). 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 we have done above, evaluate the 
content of those letters as to whether they support the alien's eligibility. See id at 795. USCIS may 
even give less weight to an opinion that is not corroborated, in accord with other information or is in 
any way questionable. Id. at 795; see also Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) 
(citing Matter o/Treasure Craft o/California, 14 I&N Dec. 190 (Reg'!. Comm'r. 1972)). 
In this instance, half of the witnesses do not claim to be "experts in the [petitioner's] field." Rather, 
they are medical specialists in fields such as neurology or cardiology, rather than the beneficiary'S field 
of hematology/oncology. The remaining letters are . for a variety of reasons. The use of 
nearly-identical language in the letters of demonstrates that those letters 
were not written independently. Not all the so they are broadly similar, each 
containing sweeping claims that the beneficiary has scaled the pinnacle of his profession before even 
completing his professional training at_. The witnesses have asserted that the beneficiary is "one 
of the leading physician-scientists in the United States and one of the world's pioneering researchers 
in hematology and oncology" (or words to that effect), but the record is devoid of documentary 
evidence to establish the petitioner's reputation or the influence of his research. Letters newly written 
especially for the petition, solicited from witnesses selected by the petitioner, do not constitute 
objective, documentary evidence. Therefore, the letters the petitioner has submitted carry far less 
weight than counsel implies, even if their origins were not in doubt. 
Regarding the observation that the director could find only one citation of the petitioner's published 
work, counsel claims: "Having been cited by others in medicine, even once, is consistent with 
establishing the petitioner as contributing a great national benefit." Counsel goes on to discuss "the 
process time from submission of a medical work to publication," and the preparation of a new case 
study for publication. Counsel offers no argument to support the argument that a single citation 
demonstrates "a great national benefit"; counsel simply makes this statement as though it were a self­
evident truth, requiring no proof or elaboration. 
The remainder of counsel's appellate brief simply recapitulates the materials previously submitted. 
Counsel, for example, repeats the still-unsupported claim that the petitioner belongs to medical 
societies that demand "satisfaction of stringent requirements" as a condition of membership. 
Counsel states: "The fact that [the petitioner] boasts membership in so many of these highly 
esteemed organizations is evidence of his superior reputation as a physician-scientist." The 
petitioner's memberships prove no such thing; they prove only that he is a member of those 
particular organizations. Surely information about the membership requirements ought to be 
available from the organizations themselves, but the petitioner has made no visible effort to submit 
that information, and thereby prove that counsel's claims regarding membership standards are based 
in fact rather than self-serving claims. 
Page 10 
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 ajob 
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. § 1361. The petitioner has not sustained that burden. 
This decision 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.