dismissed EB-2 NIW Case: Medicine

(b)(6)
DATE: ~Q~ \) 5 lU\3 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative 
Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/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, 
~~~~ 
h Ron RosenbW 
~Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO 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 specializing in neonatology, a medical discipline dealing 
with the care of newborn and premature infants. At the time she filed the etition, the petitioner was a 
fellow at Rhode Island. - - -
USCIS records indicate that the petitioner now works for the 
New York. 
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 statement from counsel. 
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 
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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). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.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 ofaliens 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 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 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. 
The USCIS regulation at 8 C.P.R. § 204.S(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 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 petition on July 2, 2012. The director acknowledged the intrinsic 
merit of neonatology, and found that the petitioner's ongoing medical research is national in scope. 
The issue to be decided here concerns the third prong of the NYSDOT national interest test. 
Describing the exhibits submitted in support of the petition, counsel stated that the petitioner 's 
"influential publications ... have been instrumental in educating other clinicians .... [H]er original 
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research is both progressive and extraordinary." Counsel cited "published materials mentioning her 
name," and the etitioner's "work as a member of the editorial team of the 
' Counsel also asked the director to 
"take into consideration her unique roles within major academic teaching hospitals." 
The petitioner submitted six witness letters. Five of the witnesses were involved in the petitioner's 
professional training at the or at 
Dr. associate professor of pediatrics and chief of the 
neonatology division at , stated: 
Not only are there very few neonatologists worldwide, but among that small group, it 
is rare to find physicians who conduct research. As one of the very few 
neonatologists conducting research, [the petitioner] contributes important work to the 
field. 
[The petitioner] conducts research on complex topics such as the use of nitric oxide in. 
the treatment of persistent pulmonary hypertension. Published in the 
[the petitioner] is particularly well-known for this work. 
Dr. stated that researchers have studied "the beneficial effect of nitric oxide" (NO) 
since 1992 and that the petitioner "played a major part in one such study, where she studied the 
correlation between oxygenation response to inhaled NO in infants with PPHN [persistent 
pulmonary hypertension of the newborn] secondary to parenchymal lung disease and initial 
methemoglobin level to cumulative nitric oxide exposure ratio." 
Dr. Rita Marie Ryan, now a professor at the stated: 
It is my professional opinion that [the petitioner] is a neonatology specialist at the top 
of her field. I worked with fthe petitionerl directly during her pediatric residency at 
where I was the Chief of the -
Division of Neonatology. She also performed research with my faculty in m 
neonatology during her residency .... 
[The petitioner] has expertise in the most serious conditions affecting infants. 
[The petitioner] is known for her facility with even the most complex cases .... (The 
petitioner] is uniquely capable of addressing complicated issues that arise in the 
neonatology unit. 
... [The petitioner] has received multiple awards for her work. 
Prof. is one of several witnesses to claim that the petitioner "is known" or "well known" for 
her work in the field, but every such claim comes from a witness who has worked , with the 
petitioner. Such statements are not evidence of a broader reputation. Prof. did not identify any 
of the petitioner's claimed awards, and the record contains no documentation of such awards. Going 
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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)). 
The petitioner identified three awards in her curriculum vitae: two travel awards from the 
and a "Physician recognition award (from] the 
' The record contains no documentation of this last award. The travel 
awards covered some of the expenses relating to the petitioner's attendance at conferences. The 
record does not reveal the criteria that qualified her for the travel awards. 
Dr. associate professor at praised the petitioner's "clinical 
excellence and her leadership in the field." Dr. also asserted that the petitioner's 
research "is frequently published." The record identifies three articles by the petitioner (one from 
2009 and two from 2012). 
Professor neonatal-perinatal medicine fellowship director at asserted 
that the petitioner "is co-author of 2 manuscripts published from her work in Dr. 
lab this year." Prof. indicated that, in addition to clinical duties, the petitioner 
"is involved in novel basic science (laboratory) research 
regarding the role of TRPV 4 receptors in 
type II cells exposed to lung injury." 
Professor stated: "Only a small percentage of board certified pediatricians 
are also board certified in neonatology." He did not specifically claim that the petitioner is board 
certified in neonatology, or otherwise explain the relevance of this comment. The record contains no 
evidence of such certification from the and the petitioner herself did 
not claim it on her curriculum vitae. Prof. stated that the petitioner "is well known for her 
exceptional 
abilities in neonatology," and that "[h)er provision of persistent, detailed care has saved 
the lives of countless patients." 
The only initial witness with no stated affiliation with or is Dr. 
associate professor at Dr. did not repeat other 
witnesses' claims that the petitioner "is particularly well-known" in her field, but instead stated: 
Based on her curriculum vitae, it is rny professional opinion that [the petitioner] is a 
qualified physician who is undergoing advanced training in the field of Neonatology. 
I would anticipate that following completion of her training in 2013, her clinical 
practice and research will continue to benefit patients in the U.S. and for this reason 
her immigration is in the U.S. national interest. ... 
She has co-authored 1 article in clinical research and 2 articles in bench research, 
which have been published in peer-reviewed journals .... 
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[The petitioner] is a neonatologist-in-training .. . [who] is gaining unique procedural 
skills, commitment to the education of new physicians, as well as research abilities in 
pulmonary disorders of neonates. 
As quoted above, the initial submission 's only independent witness claimed no knowledge of the 
petitioner's work apart from the information in the petitioner 's curriculum vitae and repeatedly 
indicated that the petitioner's training was not yet complete at the time of filing. The latter assertion 
appears to conflict with the claim that the petitioner has held leadership roles in her field. 
Finally, the petitioner 's curriculum vitae, as submitted, is a partially-completed template document 
originally prepared by an unidentified third party. A line in that document reads: "Cited xx times in 
the following major journals ...... none." A section heading reads: "Was selected for lead roles at the 
following prominent institutions, give selectivity criteria ---- how many people applied and how 
many were selected." Another section heading reads: "Very briefly describe main distinction 
regarding clinical abilities in a few sentences, for example, am one of the few in the country able to 
perform the following procedure, regarded as one of the lead experts in the country with regard to 
diagnosis or treatment of the following condition." 
The director issued a request for evidence on November 21, 2012, stating: "The petitioner did not 
provide specific information of how the beneficiary's prior achievements have influenced the field 
of endeavor." The director acknowledged the petitioner's three journal articles, but stated that the 
petitioner had not established the impact that these articles have had on others in the field. The 
director stated that the petitioner had not submitted evidence to support the claim of membership on 
the editorial boards of two journals. 
In res onse, the etitioner claimed to be ' 
. The petitioner did 
not substantiate this claim. The petitioner's statement incorporates what appears to be updated 
language from the previously submitted curriculum vitae. A heading now reads: "Cited xx times in 
the following major journals .. .. .. attached." 
The petitioner submitted partial copies of two articles with citations to the petitioner 's work. The 
petitioner has not established that this level of citation indicates significant impact or influence in the 
petitioner's field. One citation, to the petitioner's 2009 article, is in an article by Dr. 
who was a co-author of the cited article. Self-citation in this manner does not 
show influence beyond the research group that produced the original article. 
The other citation, to one of the petitioner's 2012 articles, appeared in a review article from the 
open-access journal The article was "Received 17 August 2012; 
Accepted 24 November 2012," and therefore it a peared after the petition 's July 2012 filing date. 
The record does not show exactly when Dr. article appeared, but its copyright 
date is 2012, and the petitioner herself claimed no citations when she first filed the petition. 
Therefore, it evidently appeared after the filing date. There is no evidence of citation of the 
petitioner's work before the petition 's filing date. 
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As evidence of the petitioner's judging work, the petitioner submitted copies of evaluations that he 
had completed in January 2013, regarding other trainees at 
These materials post-date the filing of the petition, and appear to represent routine 
performance evaluations. Routine supervisory functions do not establish eligibility for the waiver. 
The petitioner submitted copies of previously submitted witness letters, as well as five letters not 
previously in the record. Three of the newly submitted letters are dated late June 2012, but did not 
accompany the filing of the petition in July 2012. 
Dr. assistant professor at stated that the petitioner "was elected to the 
... based on her outstanding clinical, 
research and administrative expertise in the field of newborn medicine," and "played a critical role in 
the design, refinement and implementation" "of a critical screening 
program." The record contains no other evidence 
regarding the committee or the screening program. 
Dr. clinical assistant professor at 
stated that the petitioner's "research ... has quickly gained international attention." The witness did 
not elaborate or cite any evidence of this claimed attention. 
Professor stated that the petitioner's "research on 
the response to inhaled nitric oxide in persistent pulmonary hypertension has placed her at the 
forefront of neonatology research." Prof. Rubin claimed that the findings that the petitioner reported 
in a 2009 article "have since been incorporated as standard practice at many institutions." Prof. 
Rubin did not identify any of those institutions or cite any supporting evidence. 
Two letters signed by Professor 
Los Angeles, and by Dr. 
contain nearly identical assertions. Prof. 
following passage: 
at the 
assistant professor at the 
: letter contains the 
Her work in neonatology and her completion of a competitive pediatrics residency 
have given her a level of experience and education in the field that is unmatched by 
other general pediatricians. This background has helped her secure her present 
appointment as a clinical instructor and physician in the Neonatology department at 
Prior to this appointment, she 
was a clinical instructor and a physician in the department of 
pediatrics. 
[The petitioner] is also an accomplished research scientist. Published in leading 
internationally circulated journals, she has frequently presented her work in a variety 
of academic settings. Her work 
looked at the signaling pathways of 
various proinflammatory proteins and genes in the neonatal lung. This detailed work 
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Dr. 
NON-PRECEDENT DECISION 
is likely to open up new opportumt1es for treatment of pulmonary disorders m 
neonates, and is just one example of her impressive published works. 
letter contains an almost identical passage: 
Her work in neonatology and her completion of a competitive pediatrics residency 
have given her a level of experience and education in the field that is unmatched by 
other neonatologists. This background has helped her secure her present appointment 
as a clinical instructor and physician m the Neonatology department at 
Prior to this appointment, she was a 
clinical instructor and a physician in the department of pediatrics. 
[The petitioner] is also an accomplished research scientist. Published in leading 
internationally circulated journals, she is frequently invited to present her work to her 
peers. Her work • . 
ooked at the signaling pathways of various proinflammatory proteins 
and genes in the neonatal lung. This detailed work will open up new opportunities for 
treatment of pulmonary disorders in neonates, and is just one example of her 
impressive published works. 
The similarities between the two quoted letters suggests that the language in the letters is not the 
authors' own. Cf Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 
2006) (upholding an immigration judge's adverse credibility determination in asylum proceedings 
based in part on the similarity of some of the affidavits); Mei Chai Ye v. U.S. Dept. of Justice, 489 
F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably infer that when 
an asylum applicant submits strikingly similar affidavits, the applicant is the common source). The 
petitioner has not established that these letters represent the independent assertions of objective 
witnesses. 
The director denied the petition on April 10, 2013. In the denial notice, the director observed that 
much of the petitioner's response to the request for evidence concerned activities after the petition's 
filing date. The director also stated that the record lacked evidentiary support for the claims in the 
witness letters. 
On appeal, counsel states "clear evidence was submitted showing that [the petitioner] has made 
significant contributions to the field, that her work has impacted the national interest, especially her 
research work, and that she has distinguished herself from her peers, thereby justifying the waiver of 
labor certification." Counsel presents "a summary of major achievements," below: 
• [The petitioner] is a lead clinical neonatologist at 
where she is well known for her exceptional care of 
infants with life threatening medical conditions. 
• [The petitioner] is an invited member of the editorial team of 
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• [The 
petitioner] is also an acclaimed researcher, with works published in ... the 
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.F.R. § 103.2(b )(1). USCIS cannot properly approve the petition at 
a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In this instance, the record demonstrates 
that the petitioner was not yet fully trained at the time she filed the petition. Counsel claims that the 
petitioner holds a leadership role at but the petitioner has not shown that this leadership 
extended beyond the supervision of less-advanced trainees. Likewise, the petitioner has not shown 
that it is unusual for a neonatologist to treat "infants with life-threatening medical conditions." No 
occupation qualifies foreign workers for a blanket waiver based on the nature of the work performed, 
and therefore statements about neonatology cannot establish eligibility. 
In the request for evidence, the director had stated that the petitioner had not established her claimed 
editorial board memberships. 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. 
The petitioner's response to that notice did not address this concern. The petitioner's initial 
submission demonstrated that the editor of the asked the petitioner 
to review one manuscript. The editor's correspondence did not refer to the petitioner as a member of 
the journal's editorial board or explain the circumstances under which the journal sent the 
manuscript to her. The record does not establish the size of the journal's editorial board or the 
selection process for inclusion. The record does not show that participation in peer review is a rare 
privilege or otherwise sets peer reviewers apart from other researchers in the field of neonatology. 
The existence of published articles by the petitioner does not establish that she is "an acclaimed 
researcher." The petitioner indicated at the time of filing that her publications had no citations, and 
the petitioner did not otherwise submit evidence to establish the impact of her published work. 
Counsel concludes by stating that "numerous testimonies ... made clear that [the petitioner] is 
highly respected for her clinical abilities which of course cannot easily be objectively documented 
on a labor certification." 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA alsb held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
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users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; users may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. users may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. 165. The 
letters submitted contain claims of significant recognition and influence, but lack corroboration as 
well as critical details. Anecdotal reports about individual instances of patient treatment cannot 
suffice to corroborate claims regarding the petitioner's wider reputation or level of achievement. 
As shown above, the petitioner has submitted two letters from different authors with nearly identical 
language, which raises doubts about their true authorship. Doubt cast on any aspect of the 
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BrA 1988). 
Here, the letters contain key claims that the record otherwise fails to support, such as the assertion 
that the petitioner "is well known" in her field and that her findings "have since been incorporated as 
standard practice at many institutions." The evidence submitted does not support the claim that the 
petitioner is a distinguished, influential leader in her field. 
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 petitioner "must clearly present a significant benefit to the field of endeavor." Jd. 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 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 AAO will dismiss the appeal for the above stated reasons. 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, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.