dismissed EB-2 NIW Case: Medicine

(b)(6)
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: AUG 0 1 2014 OFFICE: NEBRASKA SERVICE CENTER FTT F : 
INRE: Petitioner: 
Beneficiary: 
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 file a motion directly with the AAO. 
Thank you, 
)JYJ( g;J r~t~G 
f Ron Rosenberg 
t' Chief, Administrative 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 us at the Administrative Appeals Office (AAO) 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 de2:ree. The 
petitioner seeks employment as an obstetrics and gynecology resident at the 
The petitioner asserts that an exemption from the requirement of a job offer, and 
thus ot a labor cerhtication, 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 legal brief and copies of previously submitted materials. 
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, orbusiness, 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 
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). 
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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 of 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. 
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 qualific ations. Id. 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 offuture 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.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 statut e, 
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 experti se 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker , on March 19, 2013. To 
explain why she seeks a national interest waiver, the petitioner submitted a letter from Dr 
an associate professor at the stated: 
(The petitioner] is currently in the United States in H-1B status along with her 
husband .. . , who is also a physician and working as a resident at the 
. ... The couple is extremely dedicated , excited and 
committed to continue in their work in the United States to find new and improved 
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ways to treat low income patients in a more cost-efficient and culturally effective 
manner in support of our country's efforts to make health care more available and 
more affordable . 
. . . Unfortunately, they will exhaust their six years of H-1B status before completing 
their residency and fellowship programs . .. [and) will have no choice but to switch to 
J-1 status, which carries a two-year home residency requirement. . .. 
[S]ince Argentina has universal health care and does not have the same types of 
cultural challenges that are present in the United States, [the petitioner and her 
spouse] would much prefer to remain in the United States and help our country 
improve its health care system .... 
[The petitioner] is not eligible to pursue other forms of permanent resident status, 
including through labor certification or as an outstanding researcher because as a 
resident, she does not have a permanent position at our University which would allow 
her to apply for permanent residence in either of these categories . 
If [the petitioner] is granted permanent residence in the United States, she is 
committed to working for community hospitals that serve indigent individuals. From 
the time she was in medical school in Argentina, volunteering in an emergency room, 
to her current research on Latino perspectives on infertility treatment and pregnancy 
planning , [the petitioner] has been dedicated to doing everything she can to improve 
health care for all. She would like to continue to work toward the goal of finding 
ways to make health care more accessible and affordable , especially for the low­
income popul ation in the U.S. Additionally, she would like to continue developing 
culturally sensitive and effective ways to treat the Spanish-speaking immigrant 
population. The approaches and programs that she is developing , and will continue to 
develop, will not be limited to our institution. Rather, these approaches and programs 
will benefit medical clinics, hospitals and other medical institutions throughout the 
United States to treat Spanish-speaking immigrant populations. 
The assertion that the petitioner is· still undergoing professional training, and therefore does not yet 
qualify for permanent employment in her field, does not exempt her from the job offer requirement. 
Similarly, the petitioner's desire to avoid J-1 nonimmigrant status, and the restrictions and 
obligations such status would entail, is not grounds for granting the national interest waiver. 
With respect to the petitioner's wish to work with underserved populations , section 203(b )(2)(B) (ii) 
of the Act makes the national interest waiver available to certain physicians who commit to 
practicing in designated shortage areas. The USCIS regulations at 8 C.F.R. § 204.12 set forth the 
evidentiary requirements for such a waiver. The petitioner has not submitted the required evidence 
or specifically claimed that she seeks the waiver under those terms . The general assertion that the 
petitioner seeks to work with the underprivileged does not qualify her for the waiver under either 
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section 203(b )(2)(B)(ii) of the Act or NYSDOT. Clinical practice affects a relative! y small, local 
patient base, and therefore lacks the national scope necessary to satisfy the second prong of the 
NYSDOT national interest test. The benefit from medical research, however, has national scope, as 
the results from such research are disseminated to other practitioners through conferences and 
journals. Regarding the petitioner's research work, Dr. stated: 
[The petitioner] worked with my group at Health Sciences 
Center as a professional research assistant from December 2007 until April 2009. In 
this position, she was the co-author r ofl the studv: 
... We know that there 
is a correlation between diabetes and women with complications in pregnancy. One 
of the initial questions for the study was why Latina women with diabetes do not plan 
their pregnancies when they are expected to be complicated. 
Dr. stated that the petitioner interviewed study participants, "completed life history calendars, " 
and reviewed the collected data, concluding "that the Latina population is afraid of doctors and 
do[es] not trust them very much. This is a huge cultural issue that needs to be addressed if the U.S. 
is going to reduce the rate of birth defects and complications in diabetic pregnancies." Dr. 
stated: "The goal is to use the data to clarify these cultural issues and then determine what the 
medical community can do to deal with this reality." She did not indicate that these findings had yet 
had a wide impact. 
Rather, she stated: "The results of this research ha[ ve] already made a positive 
impact on the care of diabetic women at Denver Health ... , and will ripple through the U.S. health 
system as well, as [the petitioner] continues to expand and present her work." 
Dr. described a second project that the petitioner "conducted when she was a professional 
research assistant and health counselor for the Health Science Center 's 
Comprehensive Women's Health Center from August 2008 to June 2011 ": 
Her project involved the provision of long-acting reversible contraception to women 
following their first trimester pregnancy terminations, and then long-term follow-up 
examining the satisfaction and continuation rate of long-acting reversible 
contraception when obtained post-abortion. In other words, [the petitioner] was 
trying to figure out if women having abortions are given the opportunity to 
immediately acquire birth control that lasts from 3 to 10 years, how many will take 
that opportunity, how satisfied are they with the birth control over time, and how long 
do they keep it. ... 
This study was recently closed because all of the data has been gathered. Now [the 
petitioner] needs to perform the analysis and report the results to the wider medical 
community. 
A third project "focused on the Latino perspective of infertility treatment and whether cultural , 
social and/or religious factors impact the utilization of assisted reproductive technologies. " The 
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Page 6 
petitioner "found ... a lack of information and a lack of understanding of the U.S. health care 
system among Latinos." When the petitioner presented her findings at a conference in 2011, "[t]he 
physicians at the presentation were very impressed and at the same time, very surprised at her 
research data." 
Dr. stated that the petitioner intended to carry out further research, but did not identify any 
research that the petitioner has undertaken after 2011. Likewise, the petitioner's own curriculum 
vitae identified the three projects that Dr. described, but no later research. The petitioner 
submitted materials relating to the research projects, such as printouts of electronic slides, but she 
did not submit evidence to establish the field's reception of her research work. 
The director issued a request for evidence (RFE) on July 30, 2013. The director requested further 
evidence to demonstrate that the petitioner's future work will produce benefits that are national in 
scope. To establish the impact of her past research work, the director instructed the petitioner to 
submit evidence that others have cited her published research. (The petitioner's initial submission 
did not indicate that she had published any research. Her materials identified three research projects, 
two of which had led to conference presentations, while the petitioner was still organizing the data 
from the third.) 
In response to the RFE, the petitioner described her clinical duties and stated: 
In addition to my work at the hospitals , I conduct research. Dr. 
are currently expanding on our study on 
and I 
and I am working on an abstract 
paper for a journal. .. . 
From the initial 32 participants of the study, 25 agreed to participate in a second semi­
structured interview with me lasting 30 to 90 minutes. During this second visit, I 
used open-ended questions and probes regarding constructs that are particular] y 
meaningful to Latina diabetics who are making reproductive decisions .... 
Through this data, we will be able to understand Latinas ' diabetic reproductive 
choices, including family planning, birth control use, cultural beliefs of contraception , 
partner role, and diabetes influence at the time of planning future pregnancies. This 
information is essential to be able to develop plans of care for Latina diabetic women 
and address preconception counseling, access to birth control, pregnancy planning 
and so forth. 
The petitioner submitted no evidence to show that the study described above had resulted in changed 
practices (for example, through the issuance of new guidelines) throughout the field. Because the 
study was still ongoing, it is not evident that the study had yet had the opportunity to influence 
others in the field. 
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The petitioner described a newer study, a 
" The petitioner did not indicate that any research 
had yet taken place in this study. Rather, she stated: "we are actively recruiting patients and no data 
has been analyzed yet." Preliminary documentation regarding the study is dated May 30, 2013, 
more than two months after 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 benefit request. 8 C.P.R. 
§ 103.2(b )(1 ), (12). US CIS 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). The study in question had just begun when the petitioner responded to the 
RFE; the petitioner's expectation of future significant results does not establish that she was already 
eligible for the waiver at the time of filing. 
Professor director of Obstetrics and Gynecology at the 
stated that · a university-affiliated hospital, "care[ s] for many 
immigrant women who speak Spanish as a primary language," and that the petitioner's 
understanding of the Spanish language and culture help her to care for those patients. This 
observation attests to her local impact as a clinician, but does not show that the petitioner meets the 
NYSDOT guidelines for the national interest waiver. 
The cover letter submitted with the petitioner's response to the RFE stated that other newly 
submitted "evidence also demonstrates, to some degree, her influence on her field of employment as 
a whole." All ofthe listed exhibits, however, originate from the or affiliated 
hospitals. The listed exhibits include the aforementioned May 2013 research proposal; internal 
communications, praising the petitioner's professionalism; a highly favorable 
Medical Student Evaluation Report; and two certificates from the 
Department of Obstetrics and Gynecology. One certificate is an undated Resident Teaching Award, 
recognizing the petitioner for "enhancing medical student's [sic] learning experiences during their 
~rd J& .:::t1h VP~N in nwilir~l «rhool" ThP other certificate, dated April 1, 2013, reads:' 
The record contains no further information about this 
award, to clarify whether the petitioner improved her own exam score or those of medical students 
training under her. 
The director denied the petition on November 27, 2013, stating that the petitioner's occupation has 
substantial intrinsic merit, but that the petitioner had not satisfied the other two prongs of the 
NYSDOT national interest test. The director stated: "Clinical patient treatment lacks national scope, 
as the direct benefits of this physician's service are limited to the physician's clientele. Published 
medical research has a wider effect ... , but the record contains limited information about the scope 
of the beneficiary's research activities." The director acknowledged the petitioner's past research 
activity but found that the petitioner has not shown that her research work has influenced the field. 
On appeal, the petitioner submits a brief, asserting that her medical research produces benefits that 
are national in scope. The brief then described the research in some detail, but such discussion is 
unnecessary to establish that the benefit from medical research is national rather than local in scope. 
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Page 8 
The director acknowledged this general truth, but found that the petitioner had not submitted enough 
"information about the scope of [her] research activities." The "national scope" prong of the 
NYSDOT national interest test concerns the occupation , rather than the petitioner's individual 
activities within that occupation. Medical research , dissemin ated through publication or 
presentation , produces benefits that are national in scope, and therefore the petitioner 's medical 
research activities satisfy that prong of the NYSDOT national interest test. The petitioner asserts that 
she intends to continue performing medical research in the future. The director did not dispute this 
assertion, but found that the petitioner had not established the impact of her research. The director 
was correct to question the impact of the petitioner's research, but this is an issue for the third and 
final prong, to be discussed below. We therefore withdraw the director ' s finding that the petitioner 
has not satisfied the second NYSDOT prong. 
The appellate brief includes a discussion of the threshold for the third NYSDOT prong, drawn from 
unpublished AAO decisions. The petitioner submits no evidence to establish that the facts of the 
instant petition are analogous to those in the cited unpublished decisions. While 8 C.F .R. § 103 .3( c) 
provides that AAO precedent decisions are binding on all USCIS employees in the administration of 
the Act, unpublished decisions are not similarly binding. The brief contends that the petitioner's 
evidence "clearly satisfies the appropriate standard" (i.e., "some degree of influence on his or her 
field as a whole based on a demonstrated past record of achievement "), but that "USCIS discounted 
the significant evidence submitted." 
To establish the petitioner's influence on her field, the brief indicates that the petitioner 's "research 
was instrumental to the study 
. which led to a conference presentation and a journal 
article. Publication 
and presentation establish that the petitioner 's work is available to others in the field, but they do 
not, by themselves, show that the petitioner's work has influenced others in the field. 
The brief states: 
The significance of her research and the influence it has on her field is further 
demonstrated by the fact that [the petitioner] has been given the unique opportunity to 
conduct additional data analysis related to this study although she is no longer 
working as a professional research assistant. This is unheard of in residency 
programs and [the petitioner] was only granted this special opportunit y because of her 
stellar research background and the potential importance of her findings. 
The petitioner submits no evidence on appeal 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 Sojjici , 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)). Furthermore, even if the 
University of Colorado took unprecedented steps in having the petitioner continue her study, this 
would not be evidence of recognition or impact outside of the 
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Page 9 
The brief asserts that the petitioner's "critically important research related to the impact of delayed 
cord clamping on term infants and preterm infants ... will provide cruci al information on whether 
this practice will provide any benefits to infants at higher altitudes." The study had not yet produced 
any results, and therefore speculation about the importance of the eventual results is premature . As 
noted previously , this project apparently did not start until after the petition ' s filing date, and 
therefore it cannot establish that the petitioner already qualified for the benefit sought as of the time 
of filing as required by 8 C.F.R. § 103.2(b)(1). See also Matter of Katigbak , 14 I&N Dec. at 49. 
The brief then repeated the list of materials submitted in response to the RFE, referring to th e 
exhibits as "evidence of her degree of influence on her field." The brief offered no explanation as to 
how the documents, all originating from the demonstrate the petitioner ' s 
influence on her field as a whole. 
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. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." /d. 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 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.