dismissed EB-2 NIW Case: Medical Research

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massa
chusett s Ave., N.W., MS 2090 
Washing ton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: NOV 1 8 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
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 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/forms 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, 
t f~~:~:!trative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director reopened the matter on the petitioner's motion, and affirmed the denial of the 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification under section 203(b )(2) of the hnmigration 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. The 
petitioner seeks employment as a researcher. At the time he filed the petition, the petitioner was a 
doctoral student 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 legal brief and copies of previously submitted exhibits. 
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 director did not consider the petitioner's claim of exceptional ability in the sciences, the arts, or 
business. Instead, the director concluded that "the petitioner holds the requisite U.S. advanced degree 
or foreign equivalent degree," effectively concluding that the petitioner qualifies for classification as a 
member of the professions holding an advanced degree. We will revisit this issue further below. 
I. National Interest Waiver 
The director's only stated ground for denial is that the petitioner has not established that a waiver of the 
job offer requirement, and thus a labor certification, is in the national interest. 
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Page 3 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. Form 
ETA-750B is now obsolete, but sections J, K and L of the successor form, ETA Form 9089, 
Application for Permanent Employment Certification, fulfill the same purpose. The record does not 
contain either version of this required document, and therefore the petitioner has not properly 
applied for the national interest waiver. The director, however, did not raise this issue. We will, 
therefore, review the matter on the merits rather than leave it at a finding that the petitioner did not 
properly apply for the waiver. 
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, 101 st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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. 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien 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 the alien 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. 
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. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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. !d. 
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Page4 
The regulation at 8 C.F.R. § 204.5(k)(2) defmes "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, Immigrant Petition for Alien Worker, on August 6, 2013. A 
statement submitted with the petition reads, in part: 
It is in the National Interest that [the petitioner] works permanently in the United 
States as there is an ongoing shortage of researchers in the United States and the 
benefits of his proposed employment will be national in scope. 
[The petitioner's] work on the Medulloblastoma tumor has greatly benefited many 
people in the United States .... [The petitioner] sorted through various databases and 
literature to find ways on how this condition is being treated by other physicians. 
This project has helped many physicians in the United States by providing them a 
more detailed look at this brain tumor that occurs in 
children .... 
[The petitioner] has worked with many physicians that have made maJor 
contributions to the field. 
The assertion of "an ongoing shortage of researchers" is not grounds for waiving the job offer 
requirement. A basic purpose of labor certification is to verify that qualified United States workers 
are not available for a given position. See NYSDOT, 22 I&N Dec. at 218. 
In the statement quoted above, the petitioner did not claim to have developed any new treatment for 
medulloblastoma, only to have combed the published literature for descriptions of existing 
treatments. 
Four letters accompanied the initial submission. Dr. now a professor at 
, previously taught at '"" .. _,__.T __ , __ ___ ,L:- when the petitioner was an 
undergraduate student there. Dr. praised the petitioner's abilities as an undergraduate teaching 
assistant, but provided no information about his subsequent activities as a researcher. 
assistant professor at , stated: 
I came to know [the petitioner] during a project he develop[ed] with some students on 
Human Immunodeficiency Virus (HIV/AIDS) ... to develop a microcredit program 
in regions of Calleria and Peru, a region where socioeconomic 
status of the population is very high. The essence of the microcredit program would 
not only enhance the economic growth of this region but also reduce the incidence of 
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communicable diseases such as malaria, tuberculosis and HIV/AIDS .... [The 
petitioner] was essential in the grant writing process. Having received a Masters in 
Global health, [the petitioner] exhibited an assemblage of vital skills needed for this 
grant writing process. [The petitioner] was very articulate and a great strategic 
planner. His ability to use various software programs ... was highly important. In 
addition, he was also able to collaborate with other stakeholders and leaders within 
the academic sphere to complete the grant writing process. 
The record does not reveal the outcome of the grant writing process or the microcredit program 
described above. 
Dr. 
stated: 
, physician at the 
During the year of 2008, I was working on [a] rare form of tumor called 
Medulloblastoma .... Based on (the petitioner's] expertise in global health and also 
having an advanced degree in the field, I invited him to work with me on this research 
project for two years (2008-2010). With his proven capability to sort through 
databases such as the (World Health Organization database) and literature, [the 
petitioner] was able to compile the number [of] cases worldwide, [and the] morbidity 
and mortality rates of this disease. He did not only bring to bear his knowledge on 
this disease but also how other physicians and public health officials combat/treat this 
disease. He was an irreplaceable member of this project. His talents, knowledge, 
great communication skills and acumen on scientific matters [were] essential in 
publishing this research in the In addition, his 
contribution to this research included write-up, formatting histology slides and also 
determining which journal this research was suitable for. He has also worked on 
several other publications including his work with another neurosurgeon on spinal 
hydatidosis (another global health disease). The global impact of this research is 
evident from the fact that it has been cited in various journals, and scientific 
conferences in the US and around the world. 
The petitioner submitted a copy of the article on medulloblastoma, but no published article on 
hydatidosis. The petitioner submitted an abstract of a conference presentation entitled 
' but no evidence ot Its 
publication or citation. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
Dr. described the petitioner's work as a research assistant: 
His first task required him to be teamed up [with] various graduate and medical 
students in order to carry through with a study looking at animals injured by bleeding 
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strokes. The project included conducting surgery, testing the animals using 
neurobehavioral cognitive testing, and western blot data gathering and analysis. [The 
petitioner] excelled in each one of these areas .... He was usually the first one in the 
lab in the morning and the last to leave in the evening .... 
I was especially taken by [the petitioner's] creative mind and independent work ethic. 
He continued to read the literature independently and generate interesting hypotheses. 
In summary, [the petitioner] is clearly the best research assistant I have worked with 
in the last 10 years. 
The letters primarily described the petitioner's role as a research assistant, providing technical 
support, rather than as a researcher in his own right. 
The director issued a request for evidence on September 9, 2013, requesting evidence to show that 
the benefit from the petitioner's work will be national in scope and reflecting the impact of his past 
work. The director requested "copies of any published articles by other researchers citing or 
otherwise recognizing [the petitioner's] research and/or contributions." The director acknowledged 
the letters submitted with the petition, but found that "they do not give specific examples of how the 
[petitioner] has influenced his field of endeavor as a whole." 
In response, the petitioner stated: 
[The petitioner's] benefits of his work as a Researcher will be national in scope. [The 
petitioner] will continue to conduct health-related research. His work in the field of 
Sciences will help in the prevention, early detection and early intervention of diseases 
which is the most feasible means of controlling healthcare costs. 
[The petitioner] will be working on the lifestyle education program. This program 
will aim to educate and improve health among populations around the United States 
where disease[s] such as cancer, neurological diseases, coronary heart diseases, 
diabetes and influenza are prevalent. In the long-run, this program will become a 
lifestyle prevention program in the United States. The program will start by 
performing a series of clinical trials. Patients detected with any of these conditions 
will go through a series of health assessments and screenings. Blood samples will be 
collected from the patients to identify blood markers, tumor markers of certain 
disease types. [The petitioner's] extensive background in public health and basic 
sciences will be essential for the success of this program. 
The petitioner submitted no evidence that the "lifestyle education program" described above already 
exists, or that he has any experience administering such a program. Instead, the petitioner appears to 
have provided a general sketch of a speculative idea, still in its early, formative stages. 
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Page 7 
The petitioner submitted a copy of an article by researchers in Poland, citing the 2010 article on 
medulloblastoma that the petitioner wrote with Dr. and three others. The petitioner 
submitted a copy of a revised letter from Dr. The letter is essentially identical to Dr. 
first letter, quoted earlier, but with an added passage which reads: 
As a result of our research, the prognosis of medulloblastoma (type of brain tumor) is 
better. Today, many children that suffer from this type of tumor can now be properly 
diagnosed by their physicians and attain a better treatment before it is too late. Some 
physicians from Brazil, China and Russia contacted me on this research for 
collaboration in treating their patients. Our research has broadened the knowledge of 
medical experts about this particular disease. 
The petitioner submitted no evidence to establish that the 2010 article has improved the prognosis 
for medulloblastoma as claimed. If statistical evidence to support this claim does not exist, then it is 
not evident that Dr. had any factual basis to make such a claim. The anecdotal reference to 
unnamed "physicians from Brazil, China and Russia" is not sufficient to meet the petitioner's burden 
of proof. See Matter of Sotfici, 22 I&N Dec. at 165. Also, the petitioner has not shown that he has 
produced any new information that is useful in treating medulloblastoma. Rather, his role in the 
project, as described by Dr. consisted of compiling existing information from previous! y 
published sources. 
The director denied the petition on January 9, 2014, stating that the petitioner had established the 
intrinsic merit and national scope of his intended work, but that the petitioner had not shown "a 
history of achievement with some degree of influence on the field as a whole." 
The petitioner filed a motion to reopen on February 7, 2014, submitting a brief, a personal statement, 
and copies of new letters. The petitioner again stated that he intends to develop "a lifestyle 
intervention research program," which "will lead to major reduction in healthcare cost while 
improving health outcomes and reduction in mortality rate in the United States." The petitioner 
stated: "It has been officially estimated that more effective lifestyle prevention program such as our 
lifestyle research program could save $218 billion in treatment expenditure annually in 2023 to 
United States government." As a source for this figure, the petitioner cited 
' 
a 2007 report by the The petitioner 
indicated that his program would focus on brain cancer, whereas the cited report refers to all 
"Chronic Disease" in general. The petitioner submitted no evidence that he has had any prior 
experience or success in designing or implementing the type of program that he described. 
The petitioner also stated that his "research is a breakthrough in understanding the characteristics of 
some types of brain cancers. Now with findings from my [article], physicians are able to definitively 
diagnose the different types of brain cancers and treat affected patients. This research has not been 
done before." The petitioner did not establish that his article has, in fact, had this effect on the 
diagnosis and treatment of brain cancer. 
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Page 8 
The petitioner also claimed: "In the past, the conventional wisdom in neuroscience circles believed 
that different types of brain cancers cannot be transformed into other brain cancers. Our research 
findings have now shown that brain cancer such as medulloblastoma can be transformed into 
gangliocytoma" (emphasis in original). The petitioner's article, quoted below, does not show that 
the idea of transformation originated with that article: 
The three references cited in the above passage date, respectively, from 2000 , 1987, and 1999, 
reflecting decades of published research showing brain cancers transforming from one type to 
another. 
In his third letter, Dr. stated that the petitioner played a major role in the research that led to 
the 2010 article described above, through "his proven ability in biostatistics to sort through databases 
such as the World Health Organization to show the morbidity and mortality of this type of brain 
cancer." 
Dr. 
Surgery" at 
"a licensed physician and a dentist currently practicing Oral and Maxillofacial 
stated: 
Dr. 
In an age of increasing emphasis on evidence based medical practice and cost control, 
[the petitioner] has become a necessity in the industry. The research he conducted 
with his colleagues on Medulloblastoma adds pertinent knowledge to the physicians' 
treatment handbook. ... Researchers such as [the petitioner] are the foundation of the 
medical community and their work is essential to the future of medicine. 
writing as a cardiovascular fellow at the stated: 
I worked by [the petitioner's] side in both the laboratory and classroom throughout 
my undergraduate education at and constantly noticed 
his strong desire to further the field of medicine via innovation and research .... 
His research studying medulloblastomas ... will hopefully provide novel therapies to 
treat these malignant tumors by inducing maturation and therefore transforming them 
into more easily treatable entities. His [article in describes 
this in great detail. This new treatment paradigm could potentially save the country 
millions of healthcare dollars by eliminating the numerous courses of chemoradiation 
that patients with medulloblastomas currently require. 
The record does not support the assertion that the petitioner's article "describes ... in great detail" 
the process of "inducing maturation" to transform medulloblastomas into more easily treated 
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Page 9 
cancers. The article in question contains three pages of text, mostly devoted to case-specific facts 
regarding the treatment of one patient. The article concludes with a discussion of how mature 
gangliocytomas are more easily treated than medulloblastomas; the final sentence reads: 
- -
' The article treats the possible existence of "novel therapies to ... indue[ e] maturation" 
as a matter of speculation, with no detailed discussion of how this might be accomplished. 
Another alumnus, Dr. , director of the 
----stated: 
It is clear that the business of delivering the latest treatments - e.g. the new biologics 
for cancer patients - drives the engine of research innovation in medicine, an area in 
which we still lead the world. However, maintaining our contribution to the progress 
of medicine while expanding coverage to underserved demographics and 
simultaneously containing costs, is quite a challenge. [The petitioner] is in a unique 
position to contribute here, as his understanding of the biology of high tech science is 
matched only by his understanding of the economic issues. 
The director reopened the petition on the petitioner's motion, and affirmed the denial on March 16, 
2014, stating: "While the letters give high praise they fail to give any specific examples of how your 
research has had an effect on your field of employment as a whole." The director added that, 
without evidence of past impact, assertions regarding "[t]he potential of [future] impact" have no 
evidentiary weight. 
On appeal, the petitioner submits copies of previously submitted exhibits, and an appellate brief that 
is essentially identical to the brief submitted with the motion to reopen. That brief describes the 
letters submitted with the motion, and states: "the letters show that the [petitioner's] contributions 
are considered to have had an impact on the field of endeavor as a whole and that his work elevates 
[the petitioner] above other students pursuing their PHd's." The director already addressed the 
letters, and the petitioner, on appeal, identifies no flaws in the director's discussion of the letters. 
The brief also indicates that the petitioner's "work on Medulloblastoma ... has had a great impact 
on his field of endeavor as a whole." The petitioner does not identify this impact or provide any 
verifiable, documentary evidence to show how his work has had an effect on the field as a whole. 
Letters from collaborators and alumni do not establish wider impact. 
The petitioner's claim of eligibility for the national interest waiver rests in part on his assertion that 
he will establish a prevention program, but the petitioner has provided no details about his plans and 
no evidence that he has had any past success with such programs, which might inspire confidence 
that he will have such success in the future. The claim also rests in part on the assertion that the 
petitioner's review of literature on a specific type of brain tumor has changed medical practice 
regarding that type of tumor, and "could save $218 billion in treatment expenditure annually," 
although that figure appears to pertain to all chronic illness rather than medulloblastoma specifically. 
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Page 10 
The petitioner submits no evidence that medulloblastoma, or brain cancer in general, currently 
results in costs at such a level that his work will save hundreds of billions of dollars each year. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. 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, 
22 I&N Dec. 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"). 
As is clear from 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. 
II. Member of the Professions Holding an Advanced Degree 
Because we review the record on a de novo basis, we may identify additional grounds for denial 
beyond what the Service Center identified in the initial decision. See Siddiqui v. Holder, 670 F.3d 
736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dar v. INS, 891 F.2d 
997, 1002 n. 9 (2d Cir. 1989). 
As noted above, the petitioner claimed eligibility as an alien of exceptional ability in the sciences, the 
arts, or business, but the director considered the petition under the parallel classification of a member of 
the professions holding an advanced degree. On appeal, the petitioner has not contested this 
reclassification of the petition. The record, however, does not contain sufficient evidence to support the 
director's finding that the petitioner qualifies as a member of the professions holding an advanced 
degree. 
If the petitioner intends to work in an occupation that requires a doctorate, then he was not qualified 
to work in such an occupation at the time he filed the Form I-140 petition, because he was still a 
doctoral student. An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request. 8 C.P.R. § 103.2(b )(1 ). A precedent decision from 1971 
includes language that is almost precisely on point: 
A petition may not be approved for a profession for which the beneficiary is not 
qualified at the time of its filing. The beneficiary cannot expect to qualify subsequently 
by taking additional courses and then still claim a priority date as of the date the petition 
was filed, a date on which he was not qualified . 
. . . It is clear that it was the intent of Congress that an alien be a recognized and fully 
qualified member of the professions at the time the petition is filed. Congress did not 
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intend that a petition that was properly denied because the beneficiary was not at that 
time qualified be subsequently approved at a future date when the beneficiary may 
become qualified under a new set of facts. To do otherwise would make a farce of the 
preference system and priorities set up by statute and regulation. 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
The petitioner holds a Master of Public Health Degree from This, however, is not the end of the 
inquiry. The definition of an "advanced degree" at 8 C.P.R. § 204.5(k)(2) includes this provision: "If a 
doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or 
a foreign equivalent degree." 
On Part 6 of Form I-140, the petitioner indicated that his intended position was permanent and full­
time, and an existing position rather than a new one. The petitioner did not identify any prospective 
employer or provide other details about his intended employment. Public health research involves a 
level of specialization that appears to be compatible with the definition of a profession, but the lack 
of detail about the petitioner's intended employment is relevant because of the clause in the 
definition of an "advanced degree" dealing with doctorates. 
It is here that the lack of information about the petitioner's intended employment is directly relevant to 
the question of eligibility. The petitioner did not hold a doctorate when he filed the petition. Therefore, 
if his intention is to complete his doctorate and then engage in employment that requires a doctorate, 
then he filed his petition prematurely; he was not eligible for such employment at the time of filing. 
The national interest waiver would exempt the petitioner from certain technical requirements, such as 
labor certification, but it would not exempt him from the basic requirement that he be eligible for the 
occupation sought on the date of filing. 
Because the petitioner has not provided sufficient details about his intended employment, USCrS cannot 
determine whether that employment would require a doctorate. The petitioner's failure to provide this 
information does not entitle him to a presumption of eligibility. 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 ofOtiende, 26 r&N Dec. 127, 128 (BIA 2013). 
The petitioner has described, albeit with minimal detail, the employment that he wishes to pursue in the 
United States. It is the petitioner's burden to show that such employment opportunities exist in the 
United States, which do not require a doctorate; USCrS is not required to affirmatively establish the 
contrary. We add that graduate study is not "employment" as such, and therefore the performance of 
such research by graduate students is not evidence that those students, lacking a doctorate, would be 
able to continue to engage in that research outside of an academic setting. 
Because the petitioner did not yet hold a doctorate when he filed the petition, and because he has not 
provided sufficient information about his intended employment in the United States to allow a 
conclusion as to whether or not that employment would require a doctorate, we find that he has not 
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Page 12 
established that, as of the filing date, he met the regulatory requirements for classification as a 
member of the professions holding an advanced degree. 
III. Exceptional Ability 
As noted above, the petitioner initially claimed eligibility as an alien of exceptional ability in the 
sciences, the arts, or business. The regulation at 8 C.P.R. § 204.5(k)(3)(ii) states that, to show that the 
alien is an alien of exceptional ability in the sciences, arts, or business, the petition must include at 
least three of the following: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation for which 
he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility. 8 C.P.R. § 204.5(k)(3)(iii). An 
introductory statement submitted with the petition cites two evidentiary criteria, as well as the 
"comparable evidence" clause. 
The petitioner submitted documentation of his degrees from 
which satisfy the plain wording of regulatory criterion (A). The petitioner then combined elements of 
the wording of criteria (B) and (F): 
LEITERS FROM PREVIOUS EMPLOYERS AND RECOGNITION FOR 
YOUR ACHIEVEMENTS AND SIGNIFICANT CONTRIBUTIONS TO YOUR 
INDUSTRY OR FIELD BY PEERS, GOVERNMENT ENTITIES, 
PROFESSIONAL OR BUSINESS ORGANIZATIONS. 
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Page 13 
(Emphasis in original.) The petitioner has not established ten years of experience as required by 
8 C.F.R. § 204.5(k)(3)(ii)(B). It appears, therefore, that the petitioner submitted the letters as evidence 
of recognition under 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The petitioner claimed only two of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). Even without 
considering the relative merits of the evidence the petitioner submitted under those two criteria, such 
evidence is insufficient to establish exceptional ability unless the petitioner also satisfies the 
"comparable evidence" clause at 8 C.F.R. § 204.5(k)(3)(iii). The plain wording of that clause indicates 
that it applies only "[i]f the above standards do not readily apply to the beneficiary's occupation." If 
the standards do readily apply to his occupation, the petitioner's own individual failure to meet those 
standards is not sufficient to trigger the "comparable evidence" clause. Here, the petitioner has not 
explained why criteria (B), 
(C), (D) and (E) do not readily apply to public health researchers. 
Therefore, he has not shown that the "comparable evidence" clause applies to his occupation. 
The petitioner listed two exhibits under the heading "Other Comparable Evidence." First, the petitioner 
submitted "additional information on the Medulloblastoma tumor"; second, the petitioner submitted 
biographical information about one of the physicians with whom he previously worked. This evidence 
has nothing directly to do with the petitioner, and therefore it cannot be construed as evidence of his 
exceptional ability. 
The petitioner's claim of exceptional ability is inadequate on its face, and therefore does not merit more 
detailed discussion of the two standards that he claims to have met. The petitioner has not met the 
regulatory requirements to establish exceptional ability in the sciences, the arts, or business. 
We will dismiss the appeal for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act; Matter of Otiende, 26 I&N Dec. 
at 128. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.