dismissed EB-2 NIW Case: Medicine

(b)(6)
DATE: 
IN RE: 
PETITION: 
JAN 0 9 2015 
Petitioner: 
Beneficiary: 
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 
Office: TEXAS SERVICE CENTER FILE: 
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.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
��f.: \��ie� A�:��trative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and 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 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. At the time be filed the petition, the petitioner was a 
fellow in transplant nephrology 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, through counsel, submits a brief listing the petitioner's publications and 
presentations and asserting that be bas submitted sufficient evidence to establish eligibility for the 
benefit sought. The brief does not offer new facts or make any specific allegation of error in the 
director's decision. 
I. LAW 
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) 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. 
(ii) 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-
(I) (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 
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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. 
The director determined that the petitioner qualified 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 interes t." 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, lOlst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 
(Nov. 29, 1991), states, in pertinent part: 
The Service 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 "exceptiona l."] 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 Dept 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 he seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Id. Finally, the petitioner seeking the waiver must establish that he 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. 
The petitioner has established that his work as a physician is in an area of substantial intrinsic merit. 
It remains, then, to determine whether the proposed benefits of the petitioner's work will be national 
in scope and whether he will benefit the national interest to a greater extent than an available U. S. 
worker with the same minimum qualifications. 
Although the national interest waiver hinges on prospective national benefit, the petitioner must 
establish his past record justifies projections of future benefit to the national interest. Id. at 219. The 
petitioner's subjective assurance that he 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 
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Page4 
future contributions by the petitioner, rather than to facilitate the entry of an individual with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. NYSDOT at 220. At issue is 
whether this petitioner's contributions in the field are of such significance that he merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification he 
seeks. A petitioner must demonstrate a past history of achievement with some degree of influence 
on the field as a whole. !d. at 219, n. 6. In evaluating the petitioner's achievements, original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. !d. at 221, n. 7. 
II. ANALYSIS 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 21, 2013. The 
petitioner stated in Part 6 of the Form I-140 that he intends to work as a "Physician," and that in this 
position he will "diagnose and treat patients suffering from various disorders. " The petitioner 
submitted evidence that, at the time of filing, he was participating in a one-year fellowship m 
transplant nephrology at from July 1, 2013 to June 30, 2014. 
In support of the petition, the petitioner submitted several letters of recommendation. In a June 24, 
2013 letter, Dr. Transplant 
New York, stated in part: 
I offer my professional opinion that [the petitioner] is an outstanding physician­
scientist in the field whose research findings have been published in prominent 
medical journals in the field, including. 
evincing the significant impact his works have had in the 
medical research community. 
The petitioner submitted evidence of his publications in the named journals, as well as evidence 
regarding the rankings and impact factors of some of the journals. In addition, the petitioner 
submitted Google Scholar citation records indicating that his works were cited a total of three times. 
Although Dr. _ asserted that the petitioner's publications are evidence of the "significant 
impact" of his work, she did not provide specific examples of how the petitioner's research findings 
have impacted the medical research community. Further, the number of citations of the petitioner's 
articles does not demonstrate that his work has influenced the field as a whole. A journal's ranking 
and impact factor can provide an approximation of the prestige of the journal, but they do not 
demonstrate the impact of every article published in that journal. The petitioner must establish that 
the findings in his articles have affected the field as a whole. 
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Dr. also stated that the petitioner "was invited to present his findings at prestigious national 
conferences," and that "his research presentations received numerous accolades including 2"d Place 
for his Poster Presentation at the 
and 3rd Place for his Poster Presentation at the 
' The petitioner submitted evidence of his research presentations, and 
evidence tfiat he won 'T ud Prize" in the 
on April and "3 ru Place in the 
::�t the New York Chapter of the 
on April 
With regard to the petitioner's presentations at medical conferences, many professional fields 
regularly hold meetings and conferences to present new work, discuss new findings, and to network 
with other professionals. These meetings and conferences are promoted and sponsored by 
professional associations, educational institutions, employers, and government agencies. Although 
presentation of the petitioner's work demonstrates that his research findings were shared with others 
and may be acknowledged as original based on their selection to be presented, there is no 
documentary evidence showing, for instance, that his presented work has resulted in medical 
advances that have been implemented at a number of hospitals, that his work has been frequently 
cited by independent researchers, or that his findings have otherwise influenced the field as a whole. 
Regarding the petitioner's awards for his research presentations, recognition for achievements is an 
element that can contribute toward a finding of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii). 
Exceptional ability, in tum, is not a self-evident ground for the national interest waiver. See section 
203(b )(2)(A) of the Act. 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 
individual seeks classification as an alien of exceptional ability, or as a member of the professions 
holding an advanced degree, that individual cannot qualify for a waiver just by demonstrating a 
degree of expertise significantly above that ordinarily encountered in his field of expertise. 
Particularly significant awards may serve as evidence of the petitioner's impact and influence on his 
field, but the petitioner has demonstrated that the two awards he received (one of which was 
specifically limited to physicians in training) are indicative of his influence on the field as a whole. 
In her letter, Dr. • 
stated in part: 
also discussed the petitioner's expertise in various clinical procedures. She 
Clinically, [the petitioner] is unique among his peers in the subspecialty area of 
nephrology for his expertise in plasmapheresis and apheresis, a cutting edge, 
treatment modality used for treating kidney rejection in patients following kidney 
transplantation and for harvesting stem cells prior to bone marrow transplantation to 
treat cancer of the blood. There are only a handful of medical centers in the country 
that perform this procedure because, associated with this procedure are life­
threatening complications including arrhythmia, sudden decrease in blood pressure, 
and sudden death. Thus, not all nephrologists possess the expertise to perform 
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plasmapheresis therapy, making [the petitioner] one of the few nephrologists in the 
nation with sufficient experience to perform plasmapheresis. 
Dr. further described the petitioner's skills and experience in diagnosing and treating a 
variety of conditions in his then-current position at 
where he served as a nephrology fellow from 2011 to 2013. However, special or unusual 
knowledge or training does not inherently meet the national interest threshold. NYSDOT at 221. 
Any claim that the petitioner possesses useful skills, or a "unique background" relates to whether 
similarly-trained workers are available in the United States and is an issue under the jurisdiction of 
the U. S. Department of Labor through the labor certification process. 
Finally, Dr. discussed the petitioner's role in teaching medical students, residents, and 
medical interns while serving as a nephrology fellow at 
As an educator at this prominent medical school, [the petitioner] actively trains the 
next generation of healthcare providers in the subspecialty of nephrology, thereby 
directly impacting the health concerns and high quality of care of the men, women, 
and children patients under their care, not only in the respective communities but also 
throughout the nation as each physician that he has instructed will move throughout 
the country establishing their medical practices, utilizing the lessons learned from [the 
petitioner] , beneficially affecting their patients. 
Dr. did not indicate that the petitioner personally developed any widely used medical 
procedures, nor did the petitioner submit evidence to that effect. Teaching existing procedures while 
employed at a teaching hospital does not distinguish the petitioner from other physicians similarly 
engaged. 
The etitioner also submitted a June 22, 2013 letter from Dr. attending physician at 
where the petitioner completed a residency in internal 
medicine from 2008 to 2011. Dr. stated that in her opinion, based on her experience working 
with "some of the leading nephrology and hypertension specialists in the country," the petitioner 
"ranks among the top 10% of nephrologist-scientists today. " Dr. did not further explain how 
she estimated the petitioner's standing among nephrologist-scientists, nor did the petitioner submit 
evidence comparing his work to that of others in the field. 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 (Assoc. Cornm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Dr. : further stated: 
Additionally, [the petitioner] is a well-regarded hysician scientist, having conducted 
original and important research at the 
�·---�--� --��- � ...:, including 
was the first�of-its-kind to report of ___ _, 
" which 
a rare, renal condition 
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and its unusual association with vascular endothelial growth factor inhibitors.� This 
case report was extraordinary as it showed reversibility of this renal disease when 
such chemotherapy drugs are used. As the first-of-its-kind research, [the petitioner's) 
findings have given new insight into this disease and association with 
inhibitors. fThe petitionerl was invited to present his findings at the 
[The petitioner 1 has gained national recognition for his innovative research findin2:s 
including 
' which was one of the first studied that highlighted the 
association of this very important dermatological disease in dialysis patients after 
a contrast used in MRI. This research was presented at the 
_., and based on this and other studies, current 
clinical guidelines absolutely prohibit the use of Gadolinium in dialysis patients. 
Regarding Dr. assertions about the originality of the petitioner's research, not every 
physician scientist who performs original research that adds to the general pool of knowledge in the 
field inherently serves the national interest to an extent that is sufficient to waive the job offer 
requirement. Again, the petitioner must establish that his work has had some degree of influence on 
the field as a whole. NYSDOT at 219, n. 6. Although Dr. asserts that the beneficiary's 
research "and other studies" influenced the "current clinical guidelines" regarding there 
is no documentary evidence to support her assertions regarding the impact of the petitioner's work. 
The petitioner did not submit evidence demonstrating the widespread prohibition of l use 
in dialysis patients or establishing the extent to which the current guidelines on that issue are based 
on the petitioner's research rather than other studies. As previously stated, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici at 165. In addition, U.S. Citizenship and Immigration Services 
need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United 
States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
In a letter dated June 20, 2013 Dr. _, Medical Director of 
stated that the U.S. is "currently experiencing a shortage of 
nephrologists," and that "[t] herefore, there is a clear need" for the petitioner's expertise as a 
nephrologist and a transplant nephrologist. The petitioner submitted articles regarding the declining 
interest in the field of nephrology among physicians in training. The unavailability of qualified U. S. 
workers, however, is not a consideration in national interest waiver determinations because the alien 
employment certification process is already in place to address such shortages. NYSDOT at 218. 
The issue of whether similarly-trained workers are available in the U.S. is an issue under the 
jurisdiction of the U. S. Department of Labor through the alien employment certification process. Id. 
at 221. Section 203(b )(2)(B)(ii) of the Act describes an alternative waiver for certain physicians 
who agree to work in an area 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. To qualify for that waiver, it is not sufficient for the petitioner to submit only 
evidence regarding a shortage of physicians in his field of practice. Rather, the waiver is limited to 
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certain physicians who follow specific requirements set forth in the regulation at 8 C.F.R. § 204. 12. 
The petitioner has not addressed or attempted to meet any of these regulatory requirements. 
In a July 17, 2013 letter, Dr. 
stated in part: 
Assistant Professor of Medicine at 
In the U.S. today, many patients are diagnosed with acute renal failure, which is the 
sudden and abrupt deterioration in kidney function. Acute renal failure has a very 
high mortality rate of up to 80% and is a costly condition. The estimated cost for a 
patient requiring dialysis secondary to acute renal failure averages between $60,000 
and $250,000 dollars each year. If caught early, acute renal failure is treatable. [The 
petitioner's] expertise in the diagnosis and management of this disorder will be of 
great benefit. 
The petitioner did not submit evidence to show that his work has resulted in nationally significant 
savings in healthcare costs. Further, the assertion that other doctors would make poorer or later 
diagnoses that would result in greater costs, amounts to unsupported speculation. See Matter of 
Soffici at 165. In addition, USCIS need not rely on unsubstantiated claims. See 1756, Inc. v. U.S. 
Att'y Gen., 745 F. Supp. at 15. 
The remaining letters submitted in support of the petition, written by additional former coileaQ:ues of 
the petitioner at 
included statements and assertions similar to those previously discussed. Accordingly, they will not 
be specifically and individually discussed in this decision. 
In addition to the issues addressed above, many of the support letters included statements regarding 
the importance of the field of nephrology. However, general arguments or information regarding the 
importance of a given field of endeavor, or the urgency of advancing medical knowledge in a 
particular field, cannot by themselves establish that an individual benefits the national interest by 
virtue of engaging in the field. NYSDOT at 217. Such assertions and information address only the 
"substantial intrinsic merit" prong of NYSDOT's national interest waiver test. 
On November 13, 2013, the director issued a Request for Evidence (RFE), instructing the petitioner 
to submit additional evidence to establish that the proposed benefit of his work will be national in 
scope and that the petitioner will benefit the national interest to a greater extent than an available 
U. S. worker with the same minimum qualifications. 
In response to the RFE, the petitioner submitted evidence that, since the filing of the petition, the 
total citations of his published work increased from three to six. Eligibility must be established at 
the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That 
decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
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Accordingly, these additional citations of the petitioner's research do not establish the influence of 
his work at the time of filing the petition. 
The petitioner also submitted a December 11, 2013 letter from Dr. , Vice Chair of 
Professor and Chief, 
• _ _ 
_. Dr. stated that she has worked with 
the petitioner "since he came on as our transplant fellow in July of 2013." She described the 
petitioner's training, his expertise in clinical procedures, and his role as clinical instructor as part of 
his fellowship. She did not assert that the petitioner has had an influence on the field as a whole. 
She stated the following regarding the petitioner's medical research: 
In terms of research [the petitioner] has several projects; he was participating in a 
single center non randomized prospective trial to evaluate the efficacy of 
pneumococcal vaccine in patients receiving in patients with rheumatic diseases 
when he was at . He is currently working with our basic 
scientist here and looking at the effect of soluble on predicting immune 
activity in renal transplant recipients. He has an inquisitive mind and is eager to 
participate in clinical research. He will have certainly at least two publications at the 
end of his fellowship year. He has authored one peer reviewed journal article with 
second author on three others with multiple poster presentations over the last 5 years. 
The petitioner submitted evidence that, since filing the petition, he has submitted an additional 
manuscript for publication. He also stated that "another clinical case report (a first case report of its 
kind) is ready for submission." As these writings have not yet been published, their influence on the 
field is not yet known. Further, as stated above, eligibility must be established at the time of filing. 
!d. 
In response to the RFE, the petitiOner also submitted copies of three email communications 
regarding potential job prospects following the end of his fellowship. In a December 31, 2013 
email, the managing partner of . states that the 
Nevada, is "interested in 
hiring a Transplant trained nephrologist to join their group and manage their transplant patients in 
addition to some general nephrology, and to work within the with the 
transplant team to provide care for patients and � 
" 
The email did not offer the position to the petitioner, but instead stated that an interview could be 
arranged if the petitioner was interested in pursuing the position. The other two emails, dated 
November 12, 2013, and January 17, 2014, are from recruiters inquiring as to the petitioner's interest 
in "a 100% position with the ," and "a new position I just 
received in Ohio," respectively. 
The director denied the petition on June 4, 2014. The director stated that the petitioner did not 
establish that the benefits of his proposed work are national in scope. The director also determined that 
the record lacked evidence showing that the petitioner's work has influenced the field. The director 
therefore concluded that the petitioner failed to establish that an exemption from the requirement of a 
job offer would be in the national interest of the United States. 
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On appeal, the petitioner submits a June 12, 2014 letter asserting that "clear evidence was submitted 
showing that [the petitioner] has made significant contributions to the field, that his work has 
impacted the national interest, and that he has distinguished herself [sic] from his peers, thereby 
justifying the waiver of labor certification." The petitioner does not allege any specific error on the 
part of the director or point to any evidence that the director failed to consider. 
With regard to the issue of national scope, clinical practice affects a relatively small, local patient 
base, and therefore lacks the national scope necessary to satisfy the second prong of the NYSDOT 
national interest waiver test. The benefit from medical research, however, has national scope, as the 
results from such research are disseminated to other practitioners through conferences and journals. 
Although the petitioner submitted evidence of medical research conducted during his residency and 
fellowship, the petitioner's mandatory participation in research during his residency does not mean 
that the petitioner will continue to engage in research after his training is complete. The submitted 
emails regarding employment opportunities did not mention research, and therefore they do not 
demonstrate that the petitioner will perform research as part of his future employment. Further, the 
petitioner indicated on the petition that he would "diagnose and treat patients," without mention of 
research. As the petitioner has not established that he will continue conducting medical research, he 
has not established the national scope of the benefit of his prospective work. 
In addition, the petitioner has not established that he will benefit the national interest to a greater 
extent than an available U. S. worker with the same minimum qualifications. The record establishes 
that the petitioner is a capable physician who has made a favorable impression on his superiors. 
Nevertheless, the evidence submitted does not establish that the petitioner's work has influenced the 
field of nephrology as a whole. 
III. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. While the petitioner need not demonstrate notoriety on the 
scale of national acclaim, 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." Id. 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. 
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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.