dismissed EB-2 NIW Case: Medical Research

MATTER OF J-K-A-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 29,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a medical teaching assistant and research assistant volunteer, seeks classification as a 
member of the professions holding an advanced degree. See section 203(b )(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest 
waiver (NIW) of the job offer requirement that is attached to this EB-2 immigrant classification. See 
section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
demonstrated the necessary track record to warrant a waiver of the job offer requirement. 
The matter is now before us on appeal. In his appeal, the Petitioner submits two new reference 
letters and discusses his area of research. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
normally requires that the individual's services be sought by a U.S. employer, a separate showing is 
required to confirm that a waiver of the job offer requirement is in the national interest. 
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 
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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) Subject to clause (ii), 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.[ 1] 
(ii)(l) The Attorney General shall grant a national interest waiver pursuant to 
clause (i) on behalf of any alien physician with respect to whom a petition for 
preference classification has been filed under subparagraph (A) if-
(aa) the alien physician agrees to work full time as a physician in an area 
or areas designated by the Secretary of Health and Human Services as 
having a shortage of health care professionals or at a health care facility 
under the jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in any State has 
previously determined that the alien physician's work in such an area or at 
such facility was in the public interest. 
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). 
Matter of New_ York State Dep 't of Transp., 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an 
area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that the proposed benefit 
will be national in scope. !d. , Finally, the petitioner seeking the waiver must confirm that the 
national interest would be adversely affected if a labor certification were required by establishing 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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(b)(6)
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that he or she will serve the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications. Jd. at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to demonstrate prospective 
national benefit. Jd. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. Jd. at 219, n.6. 
II. ANALYSIS 
The Petitioner received his Bachelor ofMedicine and Bachelor of Surgery from the 
in February 2009 and in 2012 obtained his certification from the 
He received a Master of Public Health from the 
at in 2012, with a 
concentration in epidemiologic and biostatistical methods for public health and clinical research. At 
the Petitioner completed a surgical faculty mentoring program. The Director 
correctly concluded that the Petitioner is a member of the professions holding an advanced degree. 
The remaining element is whether waiving the labor certification requirement is in the national 
interest. The record supports the Director's finding that the Petitioner works in an area of substantial 
intrinsic merit, health research. In addition, the proposed benefits of medical and health research are 
national in scope. The issue on appeal is whether the Beneficiary's past record justifies projections 
of future benefit to the national interest. NYSDOT , 22 I&N Dec. at 219. In assessing this question, 
. we look at whether the Petitioner has a past history of demonstrable achievement with some degree 
of influence on the field as a whole. I d. at 219 n.6. 
Evidence supporting the petition includes the Petitioner's curriculum vitae; credentials; ETA Form 
750B, Application for Alien Employment Certification; a published article; a personal statement; 
reference letters; and corroboration of his citations and presentations. On his curriculum vitae, the 
Petitioner specified that he had worked as a research assistant at from October 20 12 
through January 2013 and as a volunteer at clinical trials center at that institution as of July 2012: 
On the ETA 750B, the Petitioner indicated that he was working as a teaching assistant at 
All of the reference letters are froin the Petitioner's colleagues at or an entity 
affiliated with that institution. We have considered all of these letters, including those not 
specifically discussed in this decision. At the outset, several letters characterize the Petitioner as 
exceptional and explain the importance of his area of research. The classification for foreign 
nationals with exceptional ability requires a job offer and labor certification. Section 203(b )(2) of 
the Act. Accordingly, exceptional ability alone does not warrant a waiver of that requirement. 
NYSDOT, 22 I&N Dec. at 218-19. In addition, the Petitioner cannot demonstrate eligibility for the 
waiver based solely on the importance of his occupation. I d. at 217. Finally, some letters discuss his 
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(b)(6)
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academic achievements. Such performance cannot alone satisfy the national interest threshold. ld 
at 219, n. 6. 
the Petitioner's professor artdmentor at discusses the Petitioner's 
thesis project in which he "researched an advanced tool" that uses computerized clinical decision 
support and computer order entry. He linked this tool to outcomes for prophylaxis prevention of 
venous thromboembolism (VTE) in an outcomes database run by the 
envisions that the Petitioner 's means of reporting VTE harm "would encourage surgeons 
and hospitals to offer patients who undergo surgery with the most appropriate prophylaxis." 
notes that the published the study and 
concludes that it "has the potential to influence how 
hospitals in the United States" report VTE cases 
after surgery. does not suggest that any hospital is already changing its reporting policies 
or otherwise applying this work. The record reflects this article garnered · two2 citations, both of 
which are from the Petitioner's coauthors. On appeal, an assistant professor 
at states that this work formed the basis for four additional papers. He does not 
indicate who authored these articles. While a small number of citations and a lack of independent 
citations do not preclude a waiver, it remains the Petitioner's burden to corroborate his influence. 
an associate professor at affirms that the Petitioner volunteered 
on ongoing research projects. Specifically, he discusses the Petitioner's work 
comparing emergency pediatric surgery results in the United States on weekends with those on 
weekdays. · While concludes that this project "would broaden the knowledge on 
outcomes in pediatric surgery," he does not address the results or how they have already influenced 
pediatric surgery. Finally, describes another study looking at the age of presentation 
for certain pediatric conditions, but acknowledges that the Petitioner had yet to disseminate this 
work in the field. 
founder of the explains that it is a nonprofit 
affiliated with that builds capacity in academic surgery in low and middle income 
countries. indicates that the Petitioner served as a fellow with the foundation in 2013 
where he looked at the geographic distribution of colorectal screening and treatment, finding that 
rural patients are more likely to present at advanced stages. He states that the Petitioner "calls for 
proper distribution of doctors involved in screening for colon cancer ... as well as those treating it." 
notes that the Petitioner had published an abstract of this study and that a journal had 
accepted the full article for publication. describes another study whose results were 
under review for publication and concludes that the Petitioner has "tremendous promise through his 
publications which has far reaching national importance to the United States with enormous 
economic benefits." In a subsequent letter on appeal, he notes that the Petitioner's full article on 
colon cancer screening distribution has been published. While letters confirm that the 
2 The Director concluded that there were three citations , which the Petitioner repeats on appeal. The record , however, 
documents only two, Regardless, these numbers are not meaningfully different. 
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Matter of J-K-A-
Petitioner's research is in an important area and has been disseminated, they do not detail 
applications of his studies by others in the field. 
In summary, the record shows the Petitioner is a public health researcher who has earned the respect 
of his mentors and colleagues and has disseminated some of his studies through conferences or 
publication. That his work is within an important area and may have applications in the future, 
however, is an insufficient basis for the waiver of the job offer. The Petitioner did not establish that 
he has had a degree of influence on the field as a whole. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner in 
this case has not established by a preponderance of the evidence that his past record of achievement 
is at a level sufficient to waive the job offer requirement which attaches to the visa classification 
sought by the Petitioner. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Matter ofJ-K-A-, ID# 8760 (AAO Sept. 29, 2016) 
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