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: APR 0 3 2015 OFFICE: NEBRASKA SERVICE CENTER FILE: 
IN RE: 
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 (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 8C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
l���� trative �peals Offi� 
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 (AA O) 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 employment as a physician. At the time she filed the petition, the petitioner was a 
pediatric hematology/oncology fellow on the house staff of the in . Minnesota. 
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 asserts that the evidence submitted in support of the petition is sufficient to 
establish eligibility for the benefit sought. 
I. Law 
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 irmnigrants 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. 
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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., lst Sess., 11 (19 89). 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. ld. 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 217-1 8 . 
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. Id. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospec�ive 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. Id. 
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 
ordinarily encountered in his or her field of expertise. See NYSDOT, 22 I&N Dec. at 21 8-19. 
II. Facts and Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on September 26, 2012. 
In an accompanying introductory statement, the petitioner, through counsel, asserted: 
[The petitioner] is a brilliant pediatric hematology and oncology specialist with 
particular expertise in genetic blood diseases and cancer. ... 
[The petitioner] has been consistently recognized by top experts in this field. She has 
received prestigious awards, and her research has been published in leading journals 
and presented before prominent national and international conferences and meetings . 
. . . The world's leading experts acknowledge her unparalleled expertise in pediatric 
hematology and oncology .... 
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Her original research has already had a direct impact on the field and has gained her 
nationwide recognition .... 
Additionally, her researcli has been cited numerous times by other researchers as 
well .... 
In addition, [the petitioner] frequently diagnoses and treats patients from different 
parts of the country on referral. ... Because she is able to perform such advanced 
procedures that only a very small percentage of her peers are able to perform, she is 
called on to treat patients from around the country. 
(Emphasis in original.) As will be discussed below, the petitioner's evidende does not support the 
above assertions regarding her recognition by top experts in the field, that her research has already 
had a direct impact on her field, or that she has been cited numerous times by others in the field. 
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)). 
The introductory statement included the statement that labor certification is not a realistic option for the 
petitioner: 
Labor certificatio n prohibits a job offer that includes a combination of occupations 
See 69 Fed Reg 247 at 77394 annexed hereto. In the instant case, the record shows 
that [the petitioner] spends a significant amomit of her time performing patient care, 
research, and teaching. 
· 
The Bureau of Labor Statistics Occupational Outlook Handbook (OOH) describes . 
physicians and surgeon duties as "diagnose illnesses and prescribe and administer 
treatment for people suffering from injury or disease." ... There is no mention of 
research or teaching. The OOH describes medical scientists as those performing 
research on human diseases and conditions with the goal of improving human health. 
However, many medical scientists are not physicians .... Some medical scientists 
may also be physicians, but they generally work in laboratories instead of the hospital 
setting with patients. 
[The petitioner] does not fall directly under the category of either pure physician or 
pure researcher, but performs the duties of both. Recent Department of Labor trends 
indicate that the Department of Labor finds that this type of position involved a 
combination of occupations. See determination annexed hereto. This means that 
labor certification for an expert such as [the petitioner] would be prohibited. 
The cited entry in the Federal Register promulgated a final rule issuing new Department of Labor 
(DOL) regulation� governing labor certification. The petitioner did not submit a copy of this rule, 
' . 
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despite the notation that it was "annexed hereto. " The relevant regulation does not match the above 
description. Specifically, the regulation at 20 C.P.R. § 656.17(h)(3), which appears on the cited page 
of the Federal Register, reads: 
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 does not, as asserted, "prohibit[] a job offer that includes a combination of 
occupations. " Rather, combination occupations are acceptable, provided the employer is able to 
document business necessity. The petitioner did not show that the DOL has denied labor 
certification for a combination of teaching, research and clinical care at medical schools where those 
occupations are routinely combined. 
The above discussion of the OOH relates to the listings for physicians in clinical practice and for 
medical scientists employed in laboratories. Neither of these descriptions applies to the petitioner, 
whose employment in the United States has taken place entirely on the house staff of teaching hospitals. 
The petitioner has not shown that residencies and fellowships rarely combine teaching, clinical, and 
research duties. Rather, the record shows that research, teaching, and clinical care all take place at 
medical schools and their affiliated hospitals, and thus there is ample reason to believe that medical 
school house staff and faculty members "customarily perform the combination of occupations." As 
such, labor certification allowing that combination would be available to the petitioner, in the event that 
a medical school sought to employ her permanently in a capacity that customarily combines research, 
teaching, and clinical care. Because all of the petitioner's research and teaching work has been in the 
context of her own medical training, still ongoing at the time she filed the petition, it is not evident that 
the petitioner will continue performing research or teaching, or that any employer will seek her services 
in those areas, after her training is complete. 
Noting the prestige of the the introductory statement indicated: 
There are plenty of minimally qualified US workers who would be more than willing 
to take the position. However, for the top ranked institution in the field, minimally 
qualified experts are unacceptable. [The petitioner] was selected for her position 
because she is among the best in the field and can achieve superior results ... and is 
capable of teaching as well as performing clinical research. This cannot be 
articulated in a labor certification. 
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The petitioner submitted no evidence to show that she "was selected for her position because she is 
among the best in the field." We do not question the reputation of the but there is no 
blanket waiver based on the prestige of a given employer. 
The petitioner's house staff position is inherently temporary, comprising advanced training in a 
medical specialty. Labor certification applies to permanent positions, and the petitioner has not 
shown that the • seeks or intends to employ her after she completes her fellowship. 
The petitioner submitted several letters, mostly from faculty members. Dr. 
associate professor at the _ and the petitioner's "program director and . . . her 
mentor," praised the petitioner's clinical and teaching skills and stated that ."[h]er research is 
progressing very well and looks very promising." Dr. did not state that the petitioner has 
earned "nationwide recognition" as indicated in the statement quoted above, but asserted that "[s]he 
is well regarded in the division of pediatric hematology-oncology at _ ." Describing a 
case in which the petitioner diagnosed Hodgkin's lymphoma in a 14-year-old girl, Dr. stated 
that "only leading physicians have the knowledge and expertise to make such critical diagnoses." 
Dr. , assistant professor at the stated that the petitioner "is the lead 
author or co-author of numerous peer-reviewed publications, presentations and abstracts in top 
ranked national and international journals, and conferences, including 
_ 
" This quoted sentence implies that the petitioner's work has 
appeared in several publications, with the three listed titles serving as examples. The petitioner's 
curriculum vitae, however, identified only those three journals, and indicated that the. 
article was "in press" but not yet published. The record shows that the _ paper is a 
"letter to the editor," the paper is a five-paragraph abstract of a poster 
presentation, and the article is a case report, published under that heading 
,"that predates the petitioner's training in pediatric hematology/oncology. The record, 
therefore, does not show th at the petitioner had published any full-length, peer-reviewed research 
articles in the field of pediatric hematology/oncology at the time she filed the petition. 
Dr. asserted that the petitioner "is currently involved in exciting groundbreaking research," 
and called the study summarized in a ·abstract "landmark research." (Dr. 
was the petitioner's co-author on that paper. ) The record offers no objective, documentary 
support for these characterizations of the petitioner's work. 
Dr. professor and chair of the . Division of Pediatric Hematology/ 
Oncology, asserted that "distinguished institutions [such as the ] are reserved for the 
nation's foremost physician professors and clinical researchers," and stated that the petitioner 
"famously utilized her deep understanding of rare pediatric hematology and oncology diseases to 
treat a 16-month-old boy" whom she diagnosed with severe chronic neutropenia. 
Two other letters are from individuals not at , but who have worked or trained elsewhere 
in Minnesota, and whose statements therefore indicate recognition at the local level. Dr. 
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director of the Hemoglobinopathy Program at 
stated that the petitioner's "medical research prowess is well-known throughout th e 
medical community .... Her research has been published in the world's most import ant medical 
journals, _ 
' Dr. who 
trained at the before becoming an assistant professor at th e 
stat ed th at th e pet itioner's "research has appeared in myriad high-impact 
fact or, national and internat ional publications, in�luding 
_ 
Dr. stated specialties are gastroenterology and transplant 
hepatology; he claimed no training or expertise in pediatric hematology/oncology. 
The only letter from an individual with no evident ties either to the or Minnesota is Dr. 
-
Dr. letter does 
not include a resume or curriculum vitae detailing his education and past employment . Dr. 
_ 
claimed no personal acquaint ance wit h the petit ioner, and listed her various qualificat ions and 
credentials, stating th at th ese at tributes establish the petitioner's high standing in her field. He 
asserted, for instance, that the petitioner "has already made her mark in the research and clinical 
arena with various publications in high qualit y, high impact , well-reput ed journals such as 
." We have discussed the petitioner's 
publication record above. 
Many of the letters contain strong praise for the petitioner's skills and achievements, but the record 
does not support assertions to the effect that the petitioner is "well-known throughout th e medical 
community" as a "leading physician" in her specialty. 
The director issued a request for evidence (R FE) on April 17, 2013. The director instructed the 
petitioner to "submit documentary evidence to establish . . . a past record of specific prior 
achievement that justifies projections of future benefit to the national interest." The director 
specifically requested documentary evidence to support th e assertion that the petitioner's "research 
has been cited numerous times by other researchers." 
The petit ioner's response to the RFE, outlined in a statement from counsel, did not include any 
evidence of citation, nor did it address the director's request for such evidence or acknowledge th e 
earlier claim. An updated list of publicat ions added th e ti t les . 
to the three journals identified previously. The RF E response 
emphasized the petit ioner's peer review work for the journals but the 
petitioner submitted no evidence to show th at peer review for those journals is a mark of distinct ion. 
The RF E response· indicated that the petitioner "was the first to discover[] th e effect of separation of 
monocytes (infection fighting cells) on cancer cells and its pot ent ial in advancing cancer treat ment 
by radiation," leading to a "Patent application -accept ed by Vent ures and Office of 
Intellectual Property." The includes an "Invention Disclosure aQ.d Assigrunent Record" indicating 
that the beneficiary holds a 25% interest in an invention called "' " 
(Dr. holds th e remaining 75% interest .) The disclosure form is not a pat ent applicat ion, but an 
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internal document. The record does not. show whether or not the 
subsequently filed a patent application. 
Counsel indicated that the petitioner's work received "significant research funding, including from 
the federal government, which of course only funds researchers with a significant track record in 
research that is regarded as very original and practically important to the scientific communit y." The 
petitioner submitted no evidence from any government funding agenc;:y to support this 
characterization. The unsuppor�ed assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BI A 19 88); Matter of Laureano, 19 I&N Dec. 1 (BIA 19 83); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 19 80). 
The RFE response included the assertion that the petitioner "has recently been selected for a position 
in pediatric coagulation at the " Correspondence in the record shows that the position 
in question is "a one-year fellowship in the selective training 
program." Thus, it appears as if the assignment is not recognition of the petitioner's expertise in the 
area, but a "training program" to enable the petitioner to ac quire that expertise. 
Much of the new evidence submitted in response to the RF E concerns developments that occurred 
after the petition's September 26, 2012 filing date. The invitation to review papers for 
dates from May 14, 2013. The date on the "Invention Disclosure and Assignment Record" 
filed with the . . is February 13, 2013. The selection notice from the 
is from June 3, 2013. None of these developments establish eligibility for the waiver. 
They show only that the petitioner is an active researcher and that, as of June 2013, was still 
undergoing training at the . . Furthermore, 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)(l). US CI S 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 director denied the petition on December 2, 2013, stating that the petitioner had established the 
intrinsic merit of her medical specialty, but had not satisfied the remaining prongs of the NYSDOT 
national interest test. The director acknowledged that the petitioner played a part in an innovation 
for which the _ may seek patent protection, but found that the petitioner had not 
established the significance of that innovation. The director also acknowledged the submission of "a 
number of reference letters," but the director found these letters lacked corroboration and were 
therefore insufficient to "establish that the petitioner has had a substantial impact in the field of 
endeavor." The director also noted the lack of evidence that others have cited the petitioner's 
published work. 
On appeal, the petitioner submits a staJement similar to the one submitted in response to the RF E. 
The statement emphasized the petitioner's published work, her "patent applicatio n," and information 
about federal grant funding, as well as "[n]urnerous testimonies submitted with the original 
application as well as with th� response to the request for evidence." With the exception of the grant 
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funding, the director's decision addressed each of these factors, and the appeal does not rebut the 
director's findings. 
With respect to the remaining assertion that the petitioner's work has received federal grant funding, 
the record lacks evidence from the funding agencies to establish the significance of that funding or 
of the petitioner's roles in the funded projects. Therefore, the petitioner has not overcome the 
director's decision by asserting that federal funds have paid for her research. 
Furthermore, all of the petitioner's research and teaching activities have been in the' context of her 
own ongoing fellowship training. Performance of those duties while on the house staff of a teaching 
hospital provides no assurance that the petitioner will continue to teach or conduct research after she 
· completes her training. As counsel had asserted at the outset of the proceeding, the duties. of a 
physician do not normally entail those functions. Therefore, a national interest waiver application 
predicated in part on teaching and/or research duties must include some assurance that those 
functions will continue beyond being an integral part of a temporary training period. 
III. Conclusion 
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 21 8 . 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. 
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, 12 8 (BI A 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.