dismissed EB-2 NIW Case: Medical Research

identifytng d2-B to 
prevenr c\Gc\l, [-p,~ m-2 nred 
U-S. Departnlent of Homeland Security 
U S Cltlzenshlp and Immlgratlon Serwces 
c c; -.-.- rg\ privacy 
ird85i92 0a ~t 5 J'J~ 
Offlce of Admlnlstratrve Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
PmLPG CQBlf and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: JUN 0 4 2009 
LIN 07 2 18 50465 
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. 8 1153(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 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(I)(i). 
" 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska 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 is an assistant professor at Tbilisi State Medical University in the Republic of Georgia. She is 
on leave from that position, working as a research associate at the University of Miami, Florida, 
working on the Miami Project to Cure Paralysis ("Miami Project"). 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 and various 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 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 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 
Page 3 
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., 1 st Sess., 1 1 (1 989). 
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 (Comrnr. 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 hnges 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 hre 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. fj 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. Similarly, aliens who are professionals 
with an advanced degree are also not exempt from the job offedlabor certification requirement by 
virtue of their higher education. 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 or education significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner submitted a copy of her curriculum vitae (CV) with the petition. The CV listed 
fifteen published articles. Only two of those articles were published after 2001. The CV also listed 
fourteen conference presentations, nine of which were in 2003 or later. None of the articles or 
presentations named in the initial filing arose from her work in the United States, which began only 
Page 4 
about four months before she filed the petition. The evidence indicates that the petitioner began 
producing more conference presentations at around the same time she began producing fewer 
articles. The petitioner submitted copies of some of these articles and conference abstracts. 
The petitioner submitted five witness letters, all from individuals named as references on the 
petitioner's CV. 
I was the scientific supervisor of [the petitioner's] PhD thesis. . . . 
[The petitioner's] PhD study revealed a new treatment for sciatic, tibia1 and peroneal 
nerves in case of root avulsion from spinal cord. Typically, patients suffering from 
this type of injury would remain wheelchair-bound for the rest of their lives, but with 
[the petitioner's] new innovative technique, motor functions in the legs could be 
restored. Her experimental findings, when put into practice, enabled neurologists and 
surgeons to determine precisely when and what method of surgery to perform on 
patients' leg nerve damage. 
. . . In the end, her discoveries led to new surgical techniques now used by Georgian, 
Italian and Russian surgeons to help restore movement and feeling to patients with 
paralyzed limbs. 
- now an associate professor at the Medical University of Vienna, Austria, 
stated: 
I have known [the beneficiary] from her student's years as I worked at Tbilisi State 
Medical University at that time. . . . 
What separates and distinguishes her from other neurologists in the field are these 
qualities: 
o [The petitioner] has earned international scholarships and fellowships in some of 
the world's leading neurology centers. . . . 
o 
 [The petitioner] has received awards to travel and present her research findings 
. . . around the world at conferences. . . . 
o [The petitioner] is an Assistant Professor at Tbilisi State Medical University and 
she is Executor of Georgia's Continuing Educational program: "Modern 
Principles of Management and Diagnosis of Carpal Tunnel Syndrome." 
o [The petitioner] is board certified to practice neurology in Georgia, and she has 
abundant clinical experience treating and diagnosing patients with various 
peripheral nerve disorders. 
Page 5 
now Head of the Department of Neuroradiology at Klinikum Bremen-Mitte, 
Bremen, Germany, stated: 
In 2003, [the petitioner] spent three months at the Department of Neurology of the 
University of Erlangen-Nuremberg . . . to receive post-doctoral training and conduct 
post-doctoral research. . . . 
I was familiar with [the petitioner] because of her publication on peripheral nervous 
system disorders and treatment. . . . Her published findings promised and delivered 
new innovative treatments for spinal cord injuries resulting in the paralysis of 
patients7 legs. . . . 
[The petitioner's] discovery of a new surgical method of reattaching tom peripheral 
nerves to the spinal cord is now being used by doctors in Georgia, Russia and Italy to 
restore movement in patients who have paralyzed legs. This is truly a 
groundbreaking discovery. . . . The medical community is slow to adopt such novel 
treatments for spinal cord injuries and paralysis, especially when such discoveries are 
made by researchers in smaller, lesser known nations, but it is just a matter of time 
before this procedure begins to receive even wider application in other hospitals 
around the world. 
Regarding the last assertion, 
 did not describe what efforts, if an , have been made to 
introduce the petitioner's technique to neurosurgeons in Germany. 
 continued: 
[A]s I was already familiar with her achievements before she came to our Hospital in 
2003,I invited [the petitioner] to help me with a project in my own lab concerning a 
method to precisely isolate and identify areas of the brain damages by stroke. . . . 
[The petitioner] independently produced breakthrough results in our lab in Germany 
allowing us to precisely identify lesions on stroke patients' brains. . . . 
As a direct result of [the petitioner's] work and collaboration, we developed the 
absolute best way to diagnose and treat stroke patients who suffer fiom lesions on the 
brain. The first step is to quickly identify where the lesions are using the CT- 
perfusion imaging method devised by us. 
In 2004, the EFNS [European Federation of Neurological Societies] awarded [the 
petitioner] a post doctoral scholarship and so we invited [the petitioner] for training in 
peripheral nerve disorders. . . . 
Page 6 
[The petitioner] won her award because of her extensive background, qualifications, 
and commitment to the field of Neurology. For instance, in previous research work 
conducted in Georgia on peripheral nerve disorders, [the petitioner] discovered a 
novel way to reattach tom peripheral nerves in patients with paralyzed legs. . . . The 
technique she discovered is now currently employed by surgeons in Georgia. 
Before coming to King's College, [the petitioner] engaged in collaborative research 
with in Germany, wherein together they made breakthrough discoveries 
in how to precisely diagnose and then restore limb movements to stroke patients. . . . 
[The petitioner's] finding of how to precisely identify stroke induced brain injuries 
such that surgeons may treat them has directly contributed to curing paralysis suffered 
by stroke patients. The results of her collaborative work . . . have improved the 
clinical treatments of patients throughout Europe. 
So, [the petitioner] came to King's College with an impressive background, and while 
here she studied and researched Guillain-Barre syndrome (GBS) and Inflammatory 
Demyelinating Neuropathies. . . . 
While at King's College, [the petitioner] received intensive training on how to 
diagnose and treat GBS while also participating in GBS research. Upon completion 
of her work here, [the petitioner] returned to Georgia and founded a Georgian chapter 
of GBS/CIDP Foundation International. 
Forming this chapter was significant for the Georgian medical community because 
. . . in Georgia the [GBS] patients often do not receive appropriate medical treatment 
because of the lack of GBS awareness, training, and clinical expertise among the 
local doctors. 
~e~ardin~ assertion that forming a chapter of the foundation in Georgia addressed a 
"lack of GBS awareness" in that country, the record shows that the foundation is already active in 
the United States. The petitioner gave a presentation at a foundation meeting in Phoenix, Arizona, in 
2006. Therefore, the record does not establish a "lack of GBS awareness" in the United States that is 
comparable to the previous situation in Georgia. 
of the University of Miami stated that the petitioner "has previously achieved 
research breakthroughs to help restore limb movement to patients suffering from paralysis. . . . Her 
new method to restore le movements is now currently used by doctors and surgeons in Georgia, 
Italy and Russia." did not claim that the University of Miami teaches, or intends to 
teach, the petitioner's method, or that the petitioner's work in Miami directly relates to that method. 
No witness has indicated that there exists no alternative surgical treatment already in use outside of 
Georgia, Italy and Russia to restore leg movement to patients with nerve root avulsion injuries. 
Also, no witness has claimed, for example, that significant numbers of such patients have traveled to 
Georgia, Italy or Russia for surgery using the petitioner's method. 
Page 7 
[The petitioner's] job here in Miami consists of evaluating the paralyzed muscles of 
patients by using Electromyography (EMG) recordings to prove that dormant, 
paralyzed muscles are still alive years after injury. Using this information, the aim is 
to find a way to restore muscle function by innervating the muscle and nerve tissues 
with new stem cells. 
[The petitioner] is specially qualified to conduct this research as she has an extensive 
background in making precise EMG recordings in both research and clinical settings, 
and she is well qualified to independently design and perform experiments and to 
expertly analyze the results. 
On a surface level it may appear that [the petitioner] is just performing basic medical 
research, but her 17 years clinical experience of treating neurological disorders 
combined with her extensive international background of studying neurology . . . 
make her exceptionally qualified to take basic medical research to a higher, more 
penetrating level of scientific analysis. Put another way, she has the research 
background and clinical experience to make breakthrough connections in the data she 
collects. Entry level researchers and post docs simply don't have her expertise. 
Under the USCIS regulation at 8 C.F.R. 5 204.5(k)(3)(ii)(B), ten years of full-time experience in a 
given occupation can form part of a claim of exceptional ability, with the understanding that 
expertise often results from long experience. By law, however, exceptional ability in the sciences 
does not automatically result in a national interest waiver. Aliens of exceptional ability in the 
sciences are typically subject to the job offerllabor certification requirement. 
On April 3, 2008, the director issued a request for evidence (WE), instructing the petitioner to 
submit "documentary evidence" of "a degree of influence on [the petitioner's] field that 
distinguishes [the petitioner] from other researchers/scientists with comparable 
academic1professiona1 qualifications." As an example, the director noted that the petitioner could 
submit copies of published articles by other researchers, citing the petitioner's work. 
The petitioner's response consisted mostly of more witness letters. 
Executive Director and Chief Executive Officer (CEO) of the American 
Academy of Neurology, discussed the petitioner's previously discussed achievements and added: 
[The petitioner's] other contributions to the field of neurology include: 
Establishment of a Chapter of GBS Foundation International in Georgia. . . . 
Page 8 
Contributing to the World Health Organization's International Demonstration 
Project, "Management of Epilepsy at the Primary Health Care Level in 
Georgia," held by The International League Against Epilepsy, and the 
International Bureau for Epilepsy. 
Developing a continuing medical education program in Georgia titled, 
"Modem Principles of Management and Diagnosis of Carpal Tunnel 
Syndrome," which was accredited by the Board of the State Medical 
Academy, Tbilisi, Georgia. 
These three achievements show a strong social commitment to the field of neurology 
and to improving the medical care of patients suffering from CTS, GBS, and Epilepsy 
on a national scale. 
of Tbilisi State Medical University listed the same accomplishments 
tter, and stated that the petitioner's "[elxtensive EMG experience and 
expertise is [sic] absolutely essential to analyze muscle weakness and fatigue in paralyzed subjects 
from SCI [spinal cord injury]." 
repeated the assertion that "Georgian, Russian, and Italian surgeons have used the [petitioner's] 
method to help restore movement and feeling to patients with paralyzed limbs," but like the other 
witnesses, stated no intention to lean or to use that technique. Also like the other witnesses, Dr. 
did not state that the petitioner's method is the best or only method to restore limb movement 
to these patients. 
When evaluating the work of scientists from the former USSR it is important to look 
beyond traditional academic benchmark measures like . . . citation indexes to see the 
substance of a researcher's achievements; (1) the researcher's ability to collaborate 
with international institutions; (2) the ability to research and receive training outside 
their third world surroundings and; (3) the improvement of the administration of 
health care in one's homeland. 
None of the three factors listed above are persuasive. What is important is what the petitioner can 
contribute to the United States; her origins are irrelevant except for how they relate to her abilities. 
By referring to the petitioner's "third world surroundings," implies that the state of 
medicine in Georgia lags behind more developed nations. The petitioner may have helped to bring a 
"third world" nation closer to higher standards that already exist in other nations, but this 
achievement does not show that the petitioner can effect comparable changes in those more 
developed countries that already represent higher standards in health care. 
, Member of Parliament in Georgia, stated: "I cannot really speak for what 
[the petitioner] does in academia, I can only speak for the tangible results she has achieved in 
improving and contributing to the health care system of Georgia." then 
described the same research projects discussed above. The record offers no objective comparison 
between "the health care system of Georgia" and that of the United States, to show that the sort of 
improvements discussed are needed in the United States. 
petitioner's duties on the Miami Project and, like other witnesses, asserted that the beneficiary's 
years of experience qualify her for the work. 
The petitioner submitted a translated copy of a 2005 newspaper interview from Kviris Kronika, in 
which the petitioner answered general questions about stroke, epilepsy, carpal tunnel syndrome and 
other neurological disorders. 
On August 20, 2008, the director issued a second RFE, instructing the petitioner to "provide 
documentary evidence to verify" that the petitioner's techniques are "widely employed in Europe" as 
claimed. We note that the director did not request letters, but rather "documentary evidence." 
Nevertheless, the petitioner's response consists entirely of letters. 
A letter co-signed by 
 and i/ lists 31 spinal injury 
patients who "were treated with the cross innervation method" at Tbilisi State Medical University 
from 2001 to 2007. This list indicates that one institution uses the procedure about five times a year. 
It does not show or imply wider use of the method. 
of Medical Sciences of the Ukraine, stated that the petitioner's doctoral thesis resulted in "a new 
method of surgical treatment . . . in cases of traumatic injuries of limb nerves. . . . The developed 
method of the surgical treatment is applied successfully in the Ukraine, in cases of nerve root 
avulsion from spinal cord." 
of the N.N. Burdenko Scientific Research Institute of Neurosurgery, Moscow, 
Russia, stated that the petitioner's "method is been [sic] used in various clinics in Russia since 2004 
with good clinical outcome." 
- of the University of Erlangen-Nuremberg, where the petitioner trained for three 
months, stated: "I use CTP [computerized tomography perfusion] and especially the methods 
introduced by [the petitioner] as a diagnostic method in routine. It has for example an impact on the 
treatment of patients with stroke in our institution and other important centres in Europe." 
A letter from 
 Director of the American Academy of 
Neurology, is nearly identical to 
 earlier letter. The petitioner also submitted a 
copy of 
 earlier letter. It would serve no useful purpose to quote from these 
redundant submissions. 
The director denied the petition on October 20, 2008. The director acknowledged the intrinsic merit 
and national scope of the petitioner's field of research, but found that the petitioner had not 
established that she stands out in her field to an extent that would justify a waiver. 
The director noted the petitioner's failure to provide "primary evidence . . . to substantiate 
[witnesses'] assertions" regarding implementation of the petitioner's methods, even after the director 
specifically requested such evidence. The director stated: "assertions 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)." 
On appeal, counsel stated that the director improperly classified witness letters "as non evidentiary 
'assertions"' and that the director erred by citing Matter of Obaigbena and Matter of Ramirez- 
Sanchez. Counsel states that Obaigbena states only that "affirmations or statements made bv an 
attorney on behalf of his client do not constitute evidence." We agree with counsel's 
characterization of Obaigbena. The cited case law does not apply to witness statements, and to this 
extent the director erred. Nevertheless, the outcome of the decision did not rest on these particular 
citations of case law. Also, other case law exists which finds more broadly that unsupported claims 
do not constitute evidence. See Matter of Sofici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing 
Matter of Treasure Craft of CalEfornia, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
The director, in the August 2008 RFE, acknowledged the petitioner's submission of witness letters, 
and requested "documentary evidence" in order to support the claims in those letters. In context, it 
is clear that the director distinguished between documentary evidence and testimonial evidence. We 
note that the record still, even now, contains no first-hand evidence, documentary or testimonial, 
from any source in Italy to show that the petitioner's methods are used there. That claim rests 
entirely on the claims of witnesses outside of Italy. 
More broadly, the record reflects only limited application of the methods credited to the petitioner. 
The claim that the petitioner's methods will eventually gain wider acceptance has little value, as it 
amounts to speculation and conjecture. Witnesses within the Miami Project have not indicated that 
they have used, or ever intend to use, these methods. Instead, they have indicated that, because the 
petitioner has 17 years of experience in neurology, she possesses valuable expertise with the 
advanced technology used in her position. As we have already explained, a partial claim of 
exceptional ability (in this case regarding more than ten years of experience) does not present a 
compelling case for a national interest waiver. 
The petitioner, on appeal, submits documentation relating to her published and presented work 
following the petition's filing date. The beneficiary of an immigrant visa petition must be eligible at 
the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). The 
petitioner's subsequent activities cannot retroactively establish eligibility. 
The petitioner submits a new letter from 
 listing five articles that are said to contain 
citations to the petitioner's work. The petitioner does not explain why she has not submitted direct 
documentary evidence of these citations. More significantly, the director had previously requested 
citation information in the first RFE. At that time, rather than submit any citation evidence at all, the 
petitioner submitted a letter from a witness who claimed that the work of researchers in 
former Soviet republics should not be judged by citations. 
By failing to submit citation information upon the director's specific request, the petitioner effectively 
forfeited the opportunity for consideration of that information. Where, as here, a petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. 764,766 (BIA 1988); see also Matter of Obaigbena at 537. 
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.