dismissed EB-2 NIW Case: Medicine

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PrJD1JC COpy 
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 
DATE: NAY 3 0 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal 
or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 an alien of· in the sciences. The petitioner seeks 
employment as an associate physician at the At the time he 
filed the petition, the petitioner was a fellow in neonatology 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 ofthe professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement ofajob offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief from counsel, a witness letter, and supporting exhibits. 
In this decision, the term "prior counsel" shall refer to ho represented the 
petitioner at the time the petitioner filed the petition. The term "counsel" shall refer to the present 
attorney of record. 
Section 203(b) ofthe 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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. 
The director found that the petitioner, whose occupation requires at least a bachelor's degree and 
who holds a medical degree, qualifies as a member of the professions holding an advanced degree. 
An additional determination regarding the petitioner's claim of exceptional ability would have no 
Page 3 
effect on the outcome of the decision, and is therefore unnecessary. 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 defme the term "national interest." Additionally, 
Congress did not provide a specific defmition 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, 10lst Cong., 1st Sess., 11 (1989). 
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 ofthis 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 0 f 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 (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. N ext, the petitioner must show 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. 
While the national interest waiver hinges 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 
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. 
The AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defmes "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By 
statute, aliens of exceptional ability are generally subject to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member ofthe 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. 
Page 4 
The petitioner filed the Fonn 1-140 petition on June 21, 2010. In an accompanying statement, prior 
counsel stated: 
[The petitioner] is a pediatric physician, sub-specializing in neonatal medicine, with 
exceptional abilities in Pediatric and Neonatology research as well as outstanding 
clinical skills. He is one of the few that can boast of groundbreaking research as it 
pertains to feeding scores and the correlation to neurodevelopmental outcomes in 
pretenn infants based on the interpretation of amplification signals and analysis of 
rhythms obtained from the Grass Model 12 Neurodata Acquisition System. ... 
The anticipated findings from this research would be very important in early 
identification of babies with feeding problems and early institution of corrective 
measures .... 
Prior counsel did not explain how one could already know the importance of the findings if those 
results were merely "anticipated" and, thus, not yet confinned. 
Prior counsel stated that the petitioner "has dedicated his research efforts and published several 
articles on areas that can be instrumental in decreasing the burden of costs that pretenn infants place 
on the health care system and more importantly on improving the health outcomes for these pretenn 
infants" (emphasis in original). The assertion that the petitioner's work "can be instrumental in 
decreasing ... costs" does not show that his efforts to date have, in fact, had any significant effect. 
The petitioner's curriculum vitae identified three published works, all of them abstracts of 
presentations. All ofthe petitioner's published research took place at 
The petitioner stated that he continued to engage in research after leavrng that nmmlllal. 
no evidence of any subsequent publications. 
witness letters, six of them from witnesses who have worked with the 
petItIoner . ed the petitioner's "clinical skills" and said that he 
"is an active teacher of young physicians in the Neonatal ICU" (intensive care unit). Clinical 
practice and teaching duties are inherent~cope. See NYSDOT, 22 I&N Dec. 217 n.3. 
Regarding the petitioner's research work,....- stated: 
[The petitioner's] research efforts in the area of infant feeding are also of importance 
in predicting neurological outcomes in sick pretenn infants, a group at very high risk 
for developmental delay. [The petitioner] is working with me on a study of the 
biorhythms 0 f infant feeding. . . . These biorhythms and their interrelationships have 
been shown to follow a predictable developmental pattern in preterm infants. Using 
these patterns, [the petitioner] is studying whether the quantitative biorhythms will 
predict short- and long-tenn neurodevelopmental and feeding outcomes in groups of 
high-risk infants. This will be important in identifying the babies at highest risk for 
-Page 5 
long-tenn problems, and will help direct the allocation support resources to the most 
appropriate children. 
stated: 
[T]he research project [the petitioner] is currently working on has the potential to 
impact thousands of American children each year. ... [The petitioner] is presently 
devising a feeding score, a first of its kind in the world. His hypothesis is that the 
feeding score will correlate with neurodevelopmental outcome at one and two years 
of age using the Bailey Developmental Scale. The anticipated findings from this 
research would be very important in early identification of babies with feeding 
problems and early institution of corrective measures which would ultimately reduce 
the number of days spent in the NICU and overall cost of pretenn baby care in the 
USA. The study would also allow early identification of babies at risk for lifelong 
disabilities hence early institution of therapies that may ... improve quality of life, 
decrease the burden placed on caregivers ... and, ultimately lead to a reduction in the 
$50billion cost of post NICU care. 
now an assistant professor at the 
was previously the petitioner's "senior Fellow" 
Retitioner's research in virtually the same language used in 
._ expressed as one word. 
~ssor at" "supervised [the petitioner] for the past two years 
as a faculty mentor." __ called the petitioner "an excellent teacher" whose "patient care 
skills are outstanding" and w~as a strong track record in research." Regarding the 
petitioner's research project, __ stated that "his initial preliminary work shows great 
promise." wrote his letter on June 8, 2010. Thus, the petitioner's feeding score 
project was still in its "initial preliminary" stage the month that the petitioner filed the petition. 
associate professor at _ called the petitioner "an astute clinician who has 
made innumerable significant contributions to his specialty," but identified none of those 
contributions. _ stated that the petitioner's earlier research into retinopathy of prematurity, 
"presently the commonest cause of childhood blindness in the United States ... will help improve 
our understanding of the problem and bring us a step closer to designing preventive measures," but 
did not elaborate as to how the petitioner's work has led researchers closer to those measures. 
a fellow in . stated that the petitioner "has been 
instrumental in quality improvement initiatives in the of Neonatology. Strategies he is 
~ have the potential to transfonn neonatal practice not only locally but also nationally." 
_ did not identify these initiatives or strategies, or show that anyone has tried to implement 
them outside of_ Like some other witnesses, _praised the petitioner's attempts to 
-Page 6 
develop neonatal feeding scores, and predicted their trans formative impact even though the effort 
was still ongoing at the time of the letter. 
'-'U<UJU<UE, two witnesses knew the petitioner during his earlier training at 
assistant professor at the signed a letter 
indicating that the petitioner's "current research work ... would allow early identification of pre term 
infants at risk for lifelong disabilities. It will provide evidence for early institution of therapies that 
may ... improve the quality of life and decrease the burden placed on caregivers ... and, ultimately 
lead to a reduction in the 50billion cost of post NICU care." The similarity of wording with the 
letters . evident. 
•••• Iworked with 
the petitioner "between July 2005 [and] June 2008." ated that the petitioner's 
"research on hyperglycemia as a risk factor for retinopathy of prematurity and osteopenia of 
prematurity was not only well received, but his poster presentation was logical and fantastic." 
On July 23, 2010, the director issued a request for evidence, instructing the petitioner to submit 
additional documentation to establish eligibility under the NYSDOT guidelines. In response, the 
petitioner submitted seven additional witness letters. Two of the letters are from prior witnesses at 
stated that the petitioner's 
previous work on the role of potassium on osteopenia of prematurity is novel and of 
note, and may affect the way osteopenia of prematurity is managed in premature 
neonates around the world. His current work in developing a feeding score based on 
the biorhythms of feeding and the potential for predicting neurological outcomes in 
sick preterm infants would also represent a significant advance in the field. 
_offered a similar statement: 
[The petitioner's] previous work on Role of serum potassium on osteopenia of 
prematurity is unique and ground-breaking, and may affect the way Osteopenia of 
prematurity ofprematurity [sic] is managed in premature neonates, the clinical impact 
of his research is international in scope. This is truly an extraordinary 
accomp lishment. 
_noted the petitioner's invitation to present his work at the 2011 Annual Pediatric Society 
Conference, and claimed that this invitation is "an international honor given to only [ a] few with 
exceptional research of high clinical significance." The record contains nothing from the society to 
support this characterization of the invitation. Furthermore, the record does not show that the 
petitioner received that invitation before the petition's filing date. An applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time of filing the application or 
petition. 8 C.F.R. § 1 03.2(b)(1). USCIS cannot properly approve the petition at a future date after 
Page 7 
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). 
where 
the petitioner was a clinical tutor from 2003 to 2005, stated that the petitioner's "abilities qualify him 
as [an] extraordinary physician" but offered few details other than the names of institutions where 
the petitioner has trained, and the general assertion that the petitioner has published and presented 
his work. 
stated that the petitioner "has made innumerable significant 
contributions in serving the people of mid Michigan by working at the 
where he has consistently been placed in leading and critical roles for 
distinguished medical abilities." _ praised the petitioner as "both a leader and a pioneer in 
the field of medicine," but provided no details except when discussing the petitioner's duties as a 
neonatal resuscitation instructor. Even then, _ did not indicate that the petitioner 
developed or improved the techniques that he taught. _ merely emphasized the overall 
importance ofthe skill. 
credited the petitioner with "a series of exciting and groundbreaking results, which have greatly 
expanded scientific knowledge" in the field of pediatric medicine. _ stated: "What truly 
~etitioner] at the very top of his field is the impact that his research work has had," but 
_cited no evidence of that claimed impact. 
petItIoner "is regarded in the medical 
community as invaluable and rare," and "is regarded as unique in the field of pediatrics and 
neonatology." These passively-worded sentences do not say who regards the petitioner in the 
manner described; they are simply vague claims about an ill-defmed reputation. 
listed several of the petitioner's appointments and professional memberships, claiming each one to 
be a high honor that demonstrates the petitioner's reputation in the field but offering no evidence to 
support such claims. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
stated that the petitioner's "unique research on Effect of emergency contraception on adolescent 
sexual and contraceptive behavior ... will in their [sic] years to come change the way physician In 
the United states [sic] and worldwide counsel adolescents on contraceptive use." Like other 
witnesses' commentary on the petitioner's later research, this assertion amounts to speculation about 
the eventual impact of the petitioner's work. 
Page 8 
The director, in the request for evidence, had requested "documentary evidence" of that impact, but 
the petitioner provided none, instead relying entirely on witness letters. 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 
also held, however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Id. 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, 
USCIS 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; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. 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"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795. 
The letters considered above primarily contain bare assertions that the petitioner is an accomplished 
physician and researcher, without specifically identifying innovations that have influenced the 
field. Predictions of the future influence ofunfmished projects cannot meet the petitioner's burden 
of proof 
In terms of the national scope of the petitioner's intended work, several witnesses observed that 
medical research for publication is national in scope. All of the petitioner's research work, however, 
has taken place in the context of ongoing university The ner submitted nothing to 
show that he would continue to engage in research at the 
A copy of the "Associate Physician Agreement" between the petitioner and the 
indicates that the petitioner "agrees to devote his/her entire professional time, abilit~ 
this employment and agrees to perform medical services ... for the benefit ofthe ____ 
and its patients." The clinic agreed to "provide ... all necessary ... medical equipment, drugs, 
supplies, furniture and fixtures ... as are necessary for the effective practice of medicine"; the clinic 
did not agree to furnish supplies for medical research. The agreement contains no mention of 
medical research as part of the petitioner's intended duties. Rather, it strongly implies that the 
petitioner is expected to work exclusively as a physician, providing patient care. 
The director denied the petition on August 17, 2011. The director acknowledged that "[t]he 
petitioner appears to be well-qualified to ~ician," but found that the petitioner had 
not shown that his intended duties at the _ are national in scope. The director also 
Page 9 
questioned the extent ofthe petitioner's involvement in prior research, stating that the petitioner had 
not documented his publication of articles or presentations at conferences. 
On appeal, counsel correctly observes that the petitioner had provided copies of published research 
materials. These materials appear to be abstracts rather than full-length articles, but the point stands 
that the petitioner has documented his past involvement in medical research. To this extent, the 
director's decision contains an error. The AAO fmds, however, that this error did not result in an 
incorrect decision. The director was correct in noting that the petitioner's duties at the _ 
_ according to the agreement in the record, relate exclusively to patient care. 
Counsel, on appeal, discusses the petitioner's past research work at length. Past research, however, 
does not prospectively benefit the United States. The point of discussing past research is to 
demonstrate that the petitioner has already established a track record of achievement and impact on 
his field, from which it is reasonable to extrapolate future achievements of similar importance. If the 
petitioner will not continue to perform research, then the observation that research has national scope 
is true but irrelevant. As for the impact of the petitioner's past research, the record is devoid of 
independent documentary evidence that would corroborate the witness letters solicited to support the 
petition. 
nr~'l<;!I"'£1 the petitioner's "innovative research work" 
which "has resulted in the development of a specific management technique for this feeding 
complication in premature babies." The AAO notes that, while the petitioner's initial submission 
described a then-ongoing project regarding feeding rhythms, the appeal contains no evidence that 
this research ever resulted in any published article. If the petitioner developed "a specific 
management technique" that is now in widespread use, then there ought to be concrete evidence to 
that effect, beyond letters that the petitioner asked colleagues to write on his behalf 
Counsel contends that the petitioner's "designation as a Fellow of the American Academy of 
Pediatrics (AAP)" and "as a Board Certified Diplomate of the American Board of Pediatrics" (ABP) 
serve to demonstrate ''the National Scope of his Expertise in the Field." The appeal includes no 
evidence to support counsel's claims about the significance ofthe petitioner's board certification and 
status as an AAP fellow. The unsupported assertions of counsel do not constitute evidence. See 
Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In materials submitted on appeal, the only listed requirement to become a fellow of the AAP is board 
certification by the APB or certain other medical boards. The requirements for ABP certification are: 
• GRADUATION from an accredited medical school. ... 
• COMPLETION of three years of training in pediatrics in an accredited residency 
program .... 
• VERIFICATION of satisfactory completion ofresidency training .... 
Page 10 
• POSSESSION ofa valid, unrestricted state license to practice medicine. 
• SUCCESSFUL completion of a comprehensive one-day written examination. 
(Capitalization in original.) The materials indicate: "Although ABP certification is voluntary, nearly 
all qualified pediatricians seek this recognition." The record indicates that the AAP is "an 
organization of 60,000 pediatricians." The size of this organization - consisting entirely of board­
certified pediatricians - does not tend to support counsel's claim that AAP fellowship and ABP 
certification are special honors or distinctions in the field. Rather, it appears that ABP certification 
is a basic validation ofmedical credentials which more or less automatically entitles one to apply for 
AAP fellowship. 
While counsel is correct that the director disregarded the petitioner's research work, counsel has not 
shown that this error led to the denial of a petition that otherwise should have been approved. The 
director correctly raised the point that the petitioner's prospective employment does not appear to 
involve any research. Counsel, on appeal, has not addressed this point, instead offering claims about 
the importance ofthe petitioner's now-completed past research at 
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 ofthe United States. 
The AAO notes that an employer filed a Form 1-140 petition, including an approved labor certification, 
on the alien's behalf on April 24, 2012. The director approved that petition on May 9,2012. Thus, the 
alien is the beneficiary of an approved petition, granting him the same classification that he sought in 
the present proceeding. There is no longer any question of whether an employer could obtain a labor 
certification for him; USCIS records show that an employer could, and did, do so. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.