dismissed EB-2 NIW Case: Medicine

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PmVW C~L i: if~w-lfed 
invasion of persona1 privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Br 
SRC 00 005 53080 
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. fj 1 1 5 3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
jkobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, initially approved the preference visa petition. 
Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOR). In a 
Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for 
Alien Worker (Form 1-140). The director rejected a subsequent appeal as untimely and then reaffirmed 
the NOR on motion. On certification, the Administrative Appeals Office (AAO) withdrew the 
director's decision and remanded the matter for issuance of a new NOIR to the correct address and 
attorney that llly addresses the eligibility issues discussed in the AAO's decision. The matter is now 
back before the AAO on certification. The director's decision will be affirmed. 
On appeal, counsel asserts that the revocation decision must be based on "compelling evidence" as the 
original approval was several years ago. We affirm the director's decision revoking the approval of the 
petition. As will be discussed in more detail below, the original petition claimed that the petitioner 
would benefit the national interest as a researcher but was wholly unsupported by any evidence of any 
achievements as a researcher or even, for that matter, significant experience as a researcher. Thus, we 
find that the original approval was in gross error.' Moreover, none of the new evidence submitted 
establishes the petitioner's eligibility. 
Section 205 of the Act, 8 U.S.C. 
 1155, states: "The Attorney General may, at any time, for what he 
deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Finally, the realization by the director that the petition was approved in error may be good and 
sufficient cause for revoking the approval. Id. 
1 
Although the petitioner did not answer the question on Part 4 of the petition regarding whether he had filed 
a petition in behalf of himself previously, the petitioner had filed two petitions in the same classification, 
EAC-98-009-5328 1 and LIN-98-104-5 1494, which had both been denied before the petition before us was 
filed. The petitioner's failure to provide this information with the petition, signed under penalty of perjury, 
which expressly requests this information and an attached explanation if any such petitions have been filed, 
reduces his overall credibility. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 4 1 153(b)(2), as an alien of exceptional ability. The petitioner left blank the area of 
proposed employment on the petition but the petitioner held a medical degree at that time. The original 
brief references research as well as clinical experience but was not supported by any evidence that the 
petitioner had authored articles reporting the results of his medical research. The petitioner asserts that 
an exemption from the requirement of a job offer, and thus of an alien employment certification, is in 
the national interest of the United States. The director initially approved the petition on May 24,2001. 
The full procedural history of this matter, beginning with the initial NOIR on April 28, 2006, was set 
forth in our previous decision and need not be revisited in this decision. 
On August 3, 2007, the AAO withdrew the director's May 29, 2007 decision, concluding that the 
previous NOIR was issued in error to a previous address and a previous attorney. On September 19, 
2007, the director issued a new NOIR, properly addressed to counsel. On November 27, 2007, upon 
considering the petitioner's response to the new NOIR, the director issued a final notice of revocation, 
which he certified to the AAO. 
At issue in this decision are the grounds of revocation raised in the September 27, 2007 NOR and 
affirmed in the final notice of revocation. 
Section 203(b) of the Act states in pertinent part that: 
(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 requirement 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 initially sought classification as an advanced degree professional. As noted by the 
director, the petitioner must establish that he was eligible for the classification sought as of the date of 
filing in this matter, October 7, 1999. See 8 C.F.R. 4 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Regl. Cornmr. 1971). Initially, the petitioner submitted his Bachelor of Medicine and Surgery 
issued by the University of ~ind? Pakistan, in 1982. The petitioner also was awarded a Diploma in 
Thoracic Medicine from the British Postgraduate Medical Federation, Cardiothoracic Institute of the 
University of London on August 1, 1987. The petitioner did not initially submit an evaluation of either 
foreign degree. 
In the most recent NOIR, the director questioned whether the petitioner was a member of the 
professions holding an advanced degree. In response, the petitioner submitted a credential evaluation 
from World Education Services, Inc., evaluating the petitioner's Bachelor of Medicine as a "First 
professional degree in medicine (Doctor of Medicine)" and the diploma as one year of graduate medical 
education. The petitioner also submitted evidence that he received a Master of Public Health degree 
from the University of California (UC), Davis on December 18, 2004, several years after the petition 
was filed. 
The director concluded that the petitioner does qua1ifj.r as a member of the professions holding an 
advanced degree based on education and experience. A baccalaureate degree plus five years of 
progressive post-baccalaureate experience are equivalent to a U.S. Master's degree. 8 C.F.R. 
5 204.5(k)(2). We are satisfied that the petitioner had, as of the date of filing, more than five years of 
experience following his Bachelor of Medicine degree. Thus, we need not decide whether a five-year 
Bachelor of Medicine degree by itself qualifies as an advanced degree, defined as a U.S. academic or 
professional degree above that of a baccalaureate or a foreign equivalent degree. 8 C.F.R. 
5 204.5(k)(2). 
The remaining issue is whether the petitioner has established that a waiver of the job offer requirement, 
and thus an alien employment certification, is in the national interest. Neither the statute nor 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 increasing the number and proportion of 
visas for immigrants who would benefit the United States economically and otherwise. . . ." S. Rep. 
No. 55, 101 st Cong., 1st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
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 qualifjr as "exceptional."] The burden will rest 
with the alien to establish that exemption fiom, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
2 
 Spelling as it appears on the diploma. We acknowledge that the evaluation of the petitioner's education 
refers to the University of Sindh. 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 21 5, 217-1 8 (Comrnr. 1998)(hereinafter 
"NYSDOT"), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, it must be shown that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 21 7. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 1 7- 18. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. Given the evidence on which 
the petitioner relies in this matter, we emphasize that the inclusion of the term "prospective" is used 
here to require future contributions by the alien, and not to facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
As stated above, Part 6 of the petition regarding the petitioner's proposed employment is blank. In 
prior counsel's initial cover letter, counsel asserted that the petitioner intended to "continue his research 
work in the field of Pulmonary Medicine." In his personal letter, the petitioner listed the subject of the 
letter as "Application for Permanent Residence in USA as a Physician." He noted that he was currently 
employed as a senior physician. He further asserts that his experience is transferable to a U.S. 
"Academic Hospital or Research Institution." On the Form G-325 Biographic Information dated 
January 2, 2002 and submitted with the petitioner's Form 1-485 adjustment application, the petitioner 
indicated that he had worked as a "doctor" fi-om September 1996 through the present. His 2003 tax 
return lists his occupation as "counselor/student." When the petitioner was interviewed in 2004 
regarding his form 1-485 Application to Register Permanent Residence or Adjust status, it was revealed 
that he was enrolled in a Master of Public Health program. In our previous decision remanding the 
matter for a new NOR, we noted the following two issues: 
If the petitioner intends to work as a physician, the director may wish to inquire how this work 
would provide benefits that are national in scope. The director should carefully consider the 
language set forth in NYSDOT, 22 I&N Dec. at 2 17 n.3. 
If the petitioner intends to work as a researcher, the director may wish to inquire as to whether, 
as of the date of filing, the petitioner had a track record of success with some degree of 
influence on the field as a whole. Id. at 2 19, n.6. 
Finally, we reiterated that the petitioner must demonstrate his eligibility as of the date of filing. See 
8 C.F.R. $ 103.2@)(12); Matter of Katigbak, 14 I&N Dec. at 49 (Regl. Commr. 1 97 1). The petitioner 
also may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 
175 (Comrnr. 1998). 
The director did not contest that the petitioner seeks to work in an area of intrinsic merit, pulmonary 
medical research. The director stated at the end of his decision: 
Additionally, the record does not appear to hinder an acceptance of the petitioner's 
work extending nationally in scope due to the extensive network that the medical 
professions hold within themselves permitting for benefits on a national level. 
We withdraw any implication that a physician can typically demonstrate that the benefits of his work 
are national in scope as defined in NYSDOT, 22 I&N Dec. at 217 n.3. Rather, consistent with that 
decision, we find that the benefit of a single physician would be so attenuated at the national level as 
to be negligible. Significantly, after NYSDOT was issued, Congress passed the Nursing Relief for 
Disadvantaged Areas Act of 1999, Pub. L. No. 106-95, 1 13 Stat. 13 12 (1 999). Section 5 of this law, 
1 13 Stat. at 13 1 8- 19, is designed to facilitate waivers for certain physicians working in "shortage" 
areas. Section 203(b)(2)(B)(ii) of the Act. We must assume that Congress was aware of our previous 
treatment of national in scope when the new waiver provision was enacted and did not intend to alter 
our interpretation of that concept for physicians other than those who meet the requirements of newly 
enacted section 203(b)(2)(B)(ii) of the Act. See Lorilland v. Pons, 434 U.S. 575, 580 
(1 978)(Congress is presumed to be aware of administrative and judicial interpretations). 
Nevertheless, even initially, the petitioner suggested that he might seek employment at a research 
institution, implying that he sought to perform some research duties. Thus, we are satisfied that the 
proposed benefits of his work, improved treatment of diseases such as tuberculosis, would be 
national in scope. It remains, then, to determine whether the petitioner will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
Counsel has consistently noted the importance of the petitioner's area of clinical experience, 
pulmonary diseases, especially tuberculosis. Eligibility for the waiver, however, must rest with the 
alien's own qualifications rather than with the position sought. In other words, we generally do not 
accept the argument that a given project is so important that any alien qualified to work on this 
project must also qualify for a national interest waiver. NYSDOT, 22 I&N Dec. at 21 8. 
Counsel further discusses the petitioner's experience outside the United States, where virulent strains 
of tuberculosis have been more common. Counsel also alleges a shortage of medical professionals in 
the United States. It cannot suffice, however, to state that the alien possesses usefbl skills, or a 
''unique background." Id. at 221. Special or unusual knowledge or training does not inherently meet 
the national interest threshold. Id. Moreover, the issue of whether similarly-trained workers are 
available in the United States is an issue under the jurisdiction of the Department of Labor. Id. 
Page 7 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra element of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that 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. Id. at 22 1 n. 7. 
The petitioner initially submitted seven letters from his immediate circle of colleagues. In response 
to the director's most recent NOIR, the petitioner submitted letters regarding his research beginning 
in 2004. These letters have no relevance to the petitioner's track record of success as of October 7, 
1999 when the petition was filed. Nevertheless, we will review all of the letters. 
At the outset, we note that Citizenship and Immigration Services (CIS) may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
I&N Dec. 791, 795 (Commr. 1988). However, CIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795. CIS 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; See also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Comrnr. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of experience and a 
record of achievement are less persuasive than letters that provide specific examples of individual 
achievements and of how these achievements have influenced the field. In addition, letters fiom 
independent references who were previously aware of the petitioner through his reputation and who 
have applied his work are the most persuasive. Moreover, the Department of Labor's Occupational 
Outlook Handbook 151 (2006-2007 ed.) provides that a solid record of published research is 
essential in obtaining a permanent position involving basic research in the biological sciences. Thus, 
it would appear that establishing a published record is a major part of biological and medical 
research. Even where an alien is able to demonstrate a record of published work, publication is only 
indicative of the originality of the work. As stated above, the petitioner must demonstrate the 
significance of any original innovation, see NYSDOT, 22 I&N Dec. at 221 n.7, such as evidence that 
the petitioner's published work is well cited. 
an internal medicine consultant at the Saudi ARAMCO Medical Center and 
asserts that the petitioner was working there as a senior h sician. Dr. - 
reviews the petitioner's credentials and praises the Dhahran facility. Dr. 
 opines that the 
petitioner would be a good asset to the United States based on the petitioner's 10 years of experience 
as a physician. With regard to experience, the regulations indicate that ten years of progressive 
experience is one possible criterion that may be used to establish exceptional ability. Because 
exceptional ability, by itself, does not justify a waiver of the job offer/labor certification requirement, 
arguments hinging on the degree of experience required for the profession, while relevant, are not 
dispositive to the matter at hand. NYSDOT, 22 I&N Dec. at 222. Moreover, 10 years of experience as 
a physician does not predict future contributions to the national interest as a researcher. ~r.= 
concludes with a discussion of the petitioner's professionalism, participation in clinical meetings, 
seminars and conferences, and duties teaching medical students. The record does not contain any 
evidence, such as conference proceedings or agen 
Iiu 
nfirming that the petitioner has presented 
research results at major scientific conferences. Dr. 
 does not identi@ any research contribution 
by the petitioner or explain how that contribution has influenced the field of pulmonary medicine. 
The other letters fiom colleagues in Saudi Arabia provide similar information. - 
, a Consultant Gastroenterologist at the Dhahran facili also asserts that the petitioner 
conducted a new study on the treatment of Helicobacter Pylori. Dr. dh does not explain the results 
of the petitioner's study, the significance of any results, or their influence in the field. The record does 
not contain evidence that the petitioner has authored a published article on the subject or presented his 
results at a major scientific conference. 
In a letter dated September 5,2007, Dr. 
 a consultant pulmonologist at the King Abdulaziz 
Medical City in Saudi Arabia, confirms that the petitioner is now working at that facility as a staff 
physician. He confirms the petitioner's clinical experience prior to entering the United States and the 
petitioner's research experience at UC Davis. Dr. 0s not assert that the petitioner had any 
research experience prior to the date of filing in this matter. 
, Chair of the Department of Public Health Sciences at UC Davis, has rovided 
three letters in support of the petition. In his first letter, dated September 23,2004, d asserts 
that the petitioner has 15 years of clinical experience and notes that the petitioner had begun a research 
project at UC Davis. In his second letter, dated July 28,2006, asserts that the petitioner's 
research project at UC Davis was entitled "Causes of Sarcoidosis." While r asserts that 
more work is needed in this area and that he hopes to utilize the petitioner in the future, he does not 
assert that the petitioner's results were published in a peer-reviewed 'ournal or otherwise disseminated 
in the field. In his final letter, dated October 15, 2007, 
 reiterates his previous assertions 
and notes that the petitioner's area of research is meaningful and funded by the National Institute for 
Occupational Safety and Health (NIOSH). Once again, does not assert that the petitioner 
is a named author on any research 
 appearing in a peer-reviewed journal oi that the 
petitioner has presented his work at a major scientific conference. We note that all research must 
receive funding fiom somewhere. It does not follow that every researcher who has worked on a project 
receiving gov&nment funding qualifies for a waiver of the alien employment certification in the 
national interest. 
, a professor at UC Davis, confirms his interest in offering th 
position but does not discuss any of the petitioner's past accomplishments. 
Chef of the Program Development Section of the Department of Public Health Services at UC Davis, 
asserts that the petitioner focused on obesity in adults and the use of pedometers to increase physical 
activity with subsequent decrease in weight, morbidity, and mortality fiom pulmonary diseases and 
other chronic diseases. Dr. does not assert that this work has been published in a peer- 
reviewed journal or presented at a major scientific conference. He does not explain how this work has 
otherwise influenced the field. The record 
 uscript by the petitioner on this subject, but it 
bears no indicia of publication. Moreover, 
 does not explain how the petitioner's work on 
obesity relates to the treatment of dangerous forms of tuberculosis, the proposed future benefits that 
counsel claims justifies a waiver of the alien employment certification. 
As the petitioner has not demonstrated any track record of success as a researcher, or even significant 
experience as a researcher, prior to the date of filing in this matter, we must conclude that the petition, 
based on his proposed future contributions as a medical researcher, was approved in gross error and, 
thus, that the director's revocation of that approval was proper. 
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 alien employment certification will be in 
the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 8 1361. The petitioner has not sustained that burden. Accordingly, the decision of the 
director revoking the approval of the petition will be affirmed. 
Th~s decision is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: 
 The director's decision revolung the approval of the petition is affirmed.