dismissed EB-2 NIW Case: Medicine

(b)(6)
DATE: JAN 0 9 2fii 5 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: 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 
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.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
���:::�:�trative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. 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 emplo ment as a physician. At the time she filed the petition, the petitioner was a 
fellow at the 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, asserting that the petitioner had previously submitted 
sufficient evidence to· establish eligibility. 
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 
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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, Pub. 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 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 Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOI), 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 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 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 
ordinarii y encountered in his cir her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 8, 2013. An 
introductory statement established the intrinsic merit of the petitioner's occupation and the national 
benefit from research into transplant nephrology, and asserted that the petitioner's clinical work has 
a wide-reaching impact because she "frequently treats patients on referral" and "is constantly 
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teaching the use of the skills to both junior and even senior peers. As such, she is creating a ripple 
effect that is making the performance of these procedures more widespread nationally." 
At the time she filed the petition, the petitioner was on the house staff at the 
and as s�ch her specialty training, though at an advanced stage, was not yet complete. 
Responsibility for less-experienced residents and students does not amount to a leading role for the 
hospital or the wider medical community. As for the claimed "ripple effect," the record does not 
show that the petitioner created or improved the methods that she teaches to residents and students. 
The petitioner's role in passing on existing medical knowledge appears to be routine. 
The petitioner submitted no evidence to show the extent to which she "treats patients on referral." 
Clinical patient treatment is inherently limited in scope because of basic limitations on the number of 
patients that a physician is capable of treating within a given period of time. 
The introductory statement addressed the labor certification issue: 
Please note that [the petitioner] has extensive[ ]responsibilities as both a clinician and 
as a medical researcher. However, her contractual services encompass clinical work 
only. This is customary in[ ]the profession. Virtually all academic researchers who 
are not yet permanent residents are not reimbursed contractually for any research 
work that they may perform. Furthermore, since the Department of Labor does not 
allow for a combination of occupations when filing a labor certification, such a 
combination is not possible. A very significant percentage of the patients that [the 
petitioner] treats receive [sic]. Her outstanding diagnostic 
abilities allow her to diagnose these patients at earlier stages[ ]of their illness then 
[sic] the large majority of his colleagues would be able to. [ ]This saves the federal 
government a great amount of money because the need[ ]for later much more 
expensive and often invasive procedures is avoided .... 
[The petitioner] is very well-known for her diagnostic ability. She is also known for 
her ability to,deal with tremendous efficiency and precision in emergency situations 
where there is literally no margin for error and not a minute to waste. 
The petitioner's initial submission included no evidence to support the above 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 Comrn'r 1972)). 
There is no blanket waiver for physicians who treat patients on and the 
petitioner has submitted no evidence to show that her work has resulted in nationally significant savings 
in costs. The assertion that other doctors would make poorer or later diagnoses, 
resulting in greater costs, amounts to unsupported speculation. 
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Regarding the claim that "the Department of Labor does not allow for a combination of occupations 
when filing a labor certification," the regulation at 20 C.F.R. § 656.17(h)(3) provides: 
If the job opportunity involves a combination of occupations, the employer must 
document that it has normally employed persons for that combination of occupations, 
and/or workers customarily perform the combination of occupations in the area of 
intended employment, and/or the combination job opportunity is based on a business 
necessity. Combination occupations can be documented by position descriptions and 
relevant payroll records, and/or letters from other employers stating their workers 
normally perform the combination of occupations in the area of intended 
employment, and/or documentation that the combination occupation arises from a 
business necessity. 
The quoted regulation shows that "a combination of occupations" is acceptable under certain 
specified conditions. Furthermore, the record indicates that a combination of clinical, teaching and 
research duties is customary for medical school faculty members. The petitioner has not shown that 
the Department of Labor will not approve labor certification applications for· medical school faculty 
positions. In the event that the petitioner does not seek (or is not offered) such a faculty position, the 
petitioner must demonstrate that her work will still, nevertheless, involve both research and teaching, 
in order for the above assertion to have any relevance in this proceeding. The petitioner's fellowship 
training is inherently temporary, and therefore duties that are linked to that training are not a basis 
for permanent immigration benefits. 
The introductory statement indicated that the petition included "letters of support from independent 
experts nationwide .. . both from institutions at which [the petitioner] has worked and at institutions 
at which she has not worked." The petitioner trained as a resident at the 
where three of the five individuals who provided letters are on the faculty. 
The fourth letter is from a physician in New York. The only individual writing from 
outside New York State is Dr. now an associate professor at 
_ Dr. provided no information about his own background (such as where he 
trained), and he did not explain how he knew of the petitioner's work. Therefore, Dr. 
current employment in Louisiana is not evidence that the petitioner has earned a significant 
reputation outside of upstate New York. We note that, in a March 19, 2013 electronic mail message 
to Dr. , the petitioner stated: "I came to know of your jou rnal through Dr. 
" This message implies an existing acquaintance. 
Dr. professor at and chief of 
described a case in which the petitioner successfully treated a patient, and asserted 
that the petitioner "is also an accomplished researcher. Her research has been published in high­
impact factor periodicals. " 
Dr. also a professor at claimed that the petitiOner "is well 
regarded for her ability to diagnose and treat diverse [kidney] conditions," and "is an exceptional 
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research scientis t. " Dr. named some of the petitioner's published papers, but identifying the 
petitioner's work does not establish that it stands out in the field. 
Dr. an assistant professor at praised the petitioner's "uncommon 
expertise in diagnosing and treating the most acute kidney disorders, " and called her "an expert 
physician monitoring the pre and post operative care of transplantation patients. " Even if the 
petitioner had objectively established this level of expertise at a point when her own training as a 
nephrologist was not yet complete, her clinical skill is of direct benefit only to her necessarily 
limited patient base, and exceptional ability, defined at 8 C.F.R. § 204.5(k)(2) as a degree of 
expertise significantly above that ordinarily encountered, is not grounds for approving the waiver. 
Dr. asserted: "The U.S. is currently experiencing a shortage of nephrologists." Such 
shortages are not grounds for the national interest waiver under NYSDOT, because the Department of 
Labor takes the availability of United States workers into account in the labor certification process. 
See id. at 218. Section 203(b )(2)(B)(ii) of the Act created a special waiver for physicians in 
designated shortage areas, but such physicians must meet certain conditions described in the statute 
and in the regulations at 8 C.F.R. § 204.12. The petitioner has not met, or claimed to have met, 
those conditions. Therefore, assertions of a shortage in her field are without consequence to the 
petition, except insofar as the lack of competition for jobs would make it more likely, rather than less 
likely, that an employer would be able to obtain a labor certification on the petitioner's behalf. 
Dr. . � _ _ attending physician for 
� 
New York, claimed that the petitioner "has held leading roles at distinguished medical 
institutions around the world." The only two institutions he named were and the 
The petitioner held no leadership position at either of those institutions. 
Rather, she was a trainee, first as an internal medicine resident and nephrology fellow in and 
then as a transplant medicine fellow in The record contains no evidence to support the 
general claim that the petitioner, still a trainee at the time of filing, "has held leading roles at 
[unidentified] distinguished medical institutions around the world." 
Dr. signed a letter that is identical to the one signed by Dr. 
duplicate letter contains no new information requiring separate discussion. 
As such, this 
The petitioner submitted a lengthy description of her career to date. The petitioner identified her 
published work, but the document includes a passage reading: "Cited 0 times in the following major 
journals .... .. not cited yet. " 
The petitioner also stated that she is an "expert reviewer" for three jou rnals, but she also 
acknowledged that she had not yet reviewed any submissions for them. The petitioner implied that 
peer review activities further set her apart from her peers, but the record does not show that 
publishers specifically sought out the petitioner due to her expertise. Rather, electronic mail 
messages in the record show that the petitioner contacted several publishers in the spring of 2013, 
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asking to be added to their lists of available reviewers. None of the responses to the petitioner's 
messages indicated that one must meet any particular criteria to qualify as a reviewer. 
The petitioner submitted copies of abstracts of conference presentations and other products of her 
work, such as printouts of electronic slides, but no evidence to show that these materials distinguish 
her from others at a similar stage of training at university-affiliated teaching hospitals. Background 
information regarding the residency and fellowship programs at indicate that 
research and teaching are integral parts of the training process, rather than special privileges 
extended only to the elite. 
The director issued a request for evidence on October 21, 2013, instructing the petitioner to submit 
additional evidence to establish that she meets the third prong of the NYSDOT national interest test. 
In response, the petitioner submitted documentation of her ongoing research work. The only 
documentation of its impact is a printout from the Coogle Scholar search engine, indicating that 
there was one citation to her published work. The printout did not identify the citing article, but in 
an updated version of her resume, the petitioner asserted that the citation appeared in an article by 
The petitioner submitted two letters from facultv members. Dr. 
professor and director of the 
• 
expressed the 
opinion that the petitioner "is one of the top specializing in transplant medicine in the 
United States," and "also has significant teaching responsibilit ies. " Dr. asserted that 
"[a] pproximately fifty percent of the patients treated at the 
patients," and that the petitioner's expertise resulted in "a significant 
savings to the governmen t." The petitioner supplied no figures to establish how significant the 
claimed savings were. Dr. letter contains passages that appeared almost verbatim in Dr. 
previously submitted letter. 
Dr. assistant professor at the asserted that the petitioner 
"is one of a handful of physicians at _ who is capable of managing complicated 
and combined solid organ transplant recipients" and "is one of a select group of physicians with 
expertise in plasmapheresis, a procedure that is needed to treat acute rejection of the transplant." 
There is no claim that the petitioner created these procedures herself. The petitioner does not qualify 
for the waiver by learning existing medical procedures from others. See NYSDOT, 22 I&N Dec. at 
221. The petitioner's own use of those procedures is limited to her patients, and she has learned 
those techniques at institutions in the United States that already teach the methods to other medical 
students. 
The director denied the petition on May 14, 2014. The director noted: "Congress created a special 
national interest waiver for those [physicians] destined to [practice medicine in] a medically­
underserved geographical area or for service at VA hospitals." Physicians who do not meet these 
requirements remain subject to the NYSDOT requirements. 
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The director noted the earlier request for "evidence that ... the petitioner had a degree of influence 
on her field that distinguishes her from other clinical instructors of transplant medicine/transplant 
· · 
.
, such as evidence of significant citation of her published work. The director 
concluded that the petitioner had not submitted sufficient evidence to support the claim that she "has 
conducted especially influential research in transplant nephrology. " The director acknowledged the 
letters that the petitioner had submitted, but found that the letters indicated that the petitioner's 
impact is predominantly local. 
On appeal, the petitioner submits a statement which reads: 
Please note that with the initial submission ... clear evidence was submitted that [the 
petitioner] has made significant contributions to the field, that her work has impacted 
the national interest, and that she has distinguished herself from her peers, thereby 
justifying the waiver of labor certification. 
Evidence has been submitted regarding publication of her research as well as 
presentation of her research before prominent forums in the field of nephrology. 
Numerous testimonies ... made clear that she is highly respected for her clinical 
abilities in the field of nephrology, abilities which of course cannot easily be 
documented on a labor certification. She has practiced at numerous top institutions 
and her ability to utilize the most advanced clinical technology in the most difficult 
situations where there is literally no margin for error has been attested to by 
prominent peers from around the country. Furthermore, she is known to possess 
special expertise in the clinical treatment of transplant patients, which is among the 
most difficult clinical work in the field of nephrology. 
Furthermore, the documentation shows that she has held numerous prominent 
teaching positions, which we also respectfully argue impact the field nationally as she 
is instructing the next generation of nephrologists in the performance of the most 
advanced clinical technology in the field. She has held Clinical Instructor roles at 
both the 
The director, in the denial notice, acknowledged the petitioner's publications and presentations. The 
petitioner, on appeal, does not rebut or address the director's finding that the petitioner had not 
established the impact of that work. Asserting the existence of the material does not establish its 
impact. The director found that the petitioner had established only one citation of her published 
work, and the petitioner does not address this finding on appeal or establish that other evidence 
overcomes this deficiency. 
The director also acknowledged that the petitioner had submitted letters from various individuals. 
The petitioner, on appeal, does not address the director's findings about those letters. Most of the 
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letters are from individuals in New York and Wisconsin, where the petitioner trained, with the 
exception of Dr. whom the record shows the petitioner already knew. 
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 r&N Dec. 1328, 1332 (BIA 2000) (citations 
omitted). The BIA also 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 r&N Dec. 1136 (BrA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. users 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, 
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 
documentary evidence in the record offers no support for the claim that the petitioner is among the 
nation's "top nephrologist s." 
The director did not dispute that the petitioner has held teaching positions. The assertion that the 
petitioner's teaching work produces national benefits is not supported by verifiable, documentary 
evidence. Furthermore, duties connected to a temporary fellowship are not a basis for permanent 
immigration benefits, and the record identifies no medical school or other institution that seeks to 
employ the petitioner as an instructor once her fellowship is complete. 
The petitioner has established that her medical training is progressing satisfactorily, but she has not 
submitted documentary evidence to support the claim that, even before completing that training, she 
has already become a well-known and respected expert in transplant nephrology. Congress has 
created no blanket waiver for nephrologists, and the petitioner has provided no objective evidence 
that would distinguish her from others in her medical specialty to an extent that would justify the 
special immigration benefit of a national interest waiver. 
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 national interest waiver contemplates that her influence be national in scope. NYSDOT, 
22 I&N Dec. 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"). 
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As is clear from 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. 
We 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 (BJA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.