dismissed EB-2 NIW Case: Medical Oncology

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: AUG 2 8 2013 Office: TEXAS SERVICE CENTER FILE: . 
INRE: Petitioner: 
Beneficiary : 
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 please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/fonus for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
JJDadn'oL 
(\Ron Rosenberg 
{ Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. 
Subsequently, the petitioner filed a motion to reopen and 
reconsider. The AAO dismissed the motion to 
reconsider, granted the motion to reopen, and affirmed its prior decision. The petitioner filed a second 
motion to reopen . The AAO granted the motion and affirmed the dismissal of the appeal. The matter 
is now before the AAO again on a third motion to reopen. The motion will be dismissed pursuant to 
8 C.F.R. § 103.5(a)(l)(iii)(C), 103.5(a)(2), and 103.5(a)(4). 
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 an alien of exceptional ability in the sciences and as a member of 
the professions holding an advanced degree. According to parts 5 and 6 of the Form I-140, Immigrant 
Petition for Alien Worker, the petitioner identified his intended occupation as "physician," and his job 
title as "physician, surgeon, osteopath." After training at East Tennessee State University (ETSU), 
Johnson City, the petitioner began his current employment 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 qualified 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. 
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided in the 
reopened proceeding and be supported by affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing 
and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 
323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." INS v. Abudu, 485 U.S. at 110. 
In re New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217-18 (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 must 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 will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
The USCIS 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; 
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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 director found that the petitioner's work as a physician in the field of medical oncology was in 
an area of substantial intrinsic merit. However, the director, in denying the petition, determined that 
the petitioner had not established that the benefit arising from his intended future employment would be 
national in scope. The director concluded that the petitioner's "impact will be limited to the hospital 
in which he will practice; therefore, the benefit of his skills will be limited to a small area." The 
director also determined 
that the petitioner had not established that he would benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. The 
AAO has upheld the director's findings three previous times. 
In the December 27, 2012 dismissal of the petitioner's motion, the AAO determined the petitioner 
had failed to establish that he is engaged in ongoing medical research, and that the AAO reached 
incorrect conclusions in its past decisions. 
On motion, the petitioner submits a letter from counsel and a J anuarv 11, 2013 letter of support from 
Counsel asserts 
that the letter of support from shows that the petitioner's work is national in scope and that 
the national interest would be adversely affected if alien employment certification were required for the 
petitioner. 
states: 
I am writing on the behalf of [the petitioner] who has been an essential leader in the medical 
oncology cancer research program in Ottumwa, Iowa. [The petitioner] is the Senior 
Investigator for the supervising multiple 
clinical trials sponsored by several national cancer research base cooperative grouiJS. This is 
part of a large research network which I supervise as the 
[The petitioner] has been a necessary component and a very 
positive influence on the entire local community . I fully suppmt his application to receive a 
green card/permanent resident status. 
asserts that the petitioner is "a necessary component" of a "large research network" in Iowa 
and that the petitioner has been a "positive influence on the entire local community," but 
fails to explain how the petitioner's influence or impact as a cancer researcher is national in scope. 
does not point to specific research findings by the petitioner indicating that his original 
work has had, or will continue to have, an impact beyond the 
In addition, fails to provide specific examples of how the petitioner 's 
research findings have influenced the field as a whole. A petitioner must demonstrate a past history 
of achievement with some degree of influence on the field as a whole. NYSDOTat 219, n.6. 
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The petitioner has not established that his past record of achievement is at a level that would justify a 
waiver of the job offer requirement which, by law, normally attaches to the visa classification sought 
by the petitioner. The petitioner need not demonstrate notoriety on the scale of national acclaim, but 
the national interest waiver contemplates that his influence be national in scope. NYSDOT at 217 
n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of 
endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement with some degree of influence on the field as a whole."). 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. 
Furthermore, a motion to reopen must state the new facts to be provided and be supported by 
affidavits or other documentary evidence. 8 C.P.R. § 103.5(a)(2). Based on the plain meaning of 
"new," a new fact is found to be evidence that was not available and could not have been discovered 
or presented in the previous proceeding. 1 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered "new" under 8 C.P.R. § 103.5(a)(2). In addition, the petitioner has failed to explain why 
the evidence was previously unavailable and could not have been submitted earlier. Prior to filing 
his three motions, the petitioner had been afforded multiple different opportunities to submit 
evidence demonstrating his eligibility: at the time of the original filing of the petition, in response to 
the director's request for evidence, and at the time of the filing of the appeal. A review of the 
evidence that the petitioner submits on motion reveals no fact that could be considered "new" under 
8 C.P.R. § 103.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Moreover, eligibility must be established at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). While the second factor set forth in 
NYSDOT requires the petitioner to demonstrate that the proposed benefits of his work will be national 
in scope, projects that come to fruition after the petition's filing date fail to establish his elibility as of 
that date. Lastly, the instant motion does not contain the statement about whether or not the validity 
of the unfavorable decision has been or is the subject of any judicial proceeding as required by the 
regulation at 8 C.P.R. § 103.5(a)(l)(iii)(C). For this additional reason, the motion must be dismissed. 
The regulation at 8 C.P.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous 
decisions of the director and the AAO will not be disturbed. 
ORDER: The motion to reopen is dismissed, the AAO's December 27, 2012 decision is affirmed, 
and the petition remains denied. 
1 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, or learned 
<new evidence> .... " WEBSTER'S NEW COLLEGE DICTIONARY, (3d Ed 2008). (Emphasis in original).