dismissed EB-2 NIW Case: Medicine

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
DATE: Office: 
APR 21 2011 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appc<lls Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
rclated to this matter have been returned to the office that originally decided your case. Please be advised 
that any furthcr inquiry that you might have concerning your case must be madc to that oflice. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may tile a motion to reconsider or a motion to reopen. 
The specitic requirements for tiling such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by tiling a Form 1-29013, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be 
filcd within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
)jOfpdndc r Perry Rhew 
'\'" Chie/: Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Oirector,_ Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classifY the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § 1153(b)(2), as an alien of exceptional ability or a member of the 
professions holding an advanced degree. The petitioner, the beneficiary's grandmother, asserts that the 
beneiiciary will work as a U.S. military medical doctor. As of the date of filing, the beneticiary had not 
worked as a physician for several years. Rather, his recent employment involved marketing 
pharmaceuticals. The petitioner asserts that an exemption trom the requirement of a job offer, and thus 
of an alien employment certification, is in the national interest of the United States. The director did 
not contest that the beneficiary qualifies for classification as an alien of exceptional ability or a member 
of the professions holding an advanced degree. Rather, the director concluded that the petitioner had 
not established that an exemption trom the requirement of a job offer would be in the national interest 
of the United States. 
On appeal, the petitioner submits a statement and evidence of the beneficiary'S credentials. For the 
reasons discussed below, we uphold the director's determination that the petitioner has not established 
the beneticiary's eligibility for the benefit sought. Specifically, the petitioner has not submitted the 
required evidence necessary to establish eligibility under section 203(b)(2)(B)(ii) of the Act or 
documented that the beneficiary has the necessary track record in military medicine required for the 
discretionary waiver under section 203(b)(2)(B)(i) of the Act. 
The petitioner has consistently asserted that the beneticiary's intent to serve in the U.S. military as a 
doctor, in and of itsclt~ warrants a waiver of the alien employment certitication. This assertion 
essentially argues tor a blanket waiver for all alien physicians intending to join the military and serve as 
a military doctor. As will be discussed below, regardless of the petitioner's personal belief that her 
grandson will benetit the national interest as a military doctor, there is no blanket waiver covering the 
tilCts in this case. 
Beyond the decision of the director, we further tind that the petitioner has not submitted sufficient 
evidence of the beneficiary's advanced degree. An application or petition that fails to comply with the 
technical requirements of the law may be denied by the AAO even if the Service Center does not 
identity all of the grounds tor denial in the initial decision. See Spencer Enterprises, Inc. v. Uniled 
States, 229 F. Supp. 2d 1025, 1043 (£.0. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also 
Soltane v DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on 
a de novo basis). 
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. --
Page 3 
(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)(i) Subject to clause (ii), 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. 
(ii)(!) The Attorney General shall grant a national interest waiver pursuant 
to clause (i) on behalf of any alien physician with respect to whom a 
petition for preference classification has been filed under subparagraph (A) 
if~-
(aa) the alien physician agrees to work full time as a 
physician in an area or areas designated by the Secretary of 
Health and Human Services as having a shortage of health 
care professionals or at a health care facility under the 
jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in 
any State has previously determined that the alien physician's 
work in such an area or at such facility was in the public 
interest. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the equivalent of a master's degree. If a 
doctoral degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree." Id. 
The regulation at 8 C.F.R. § 204.5(3)(i) states that evidence of an advanced degree consists of an 
"official academic record showing that the alien has a United States advanced degree or a foreign 
equivalent degree" or an official academic record tor a U.S. baccalaureate or foreign equivalent 
degree plus five years of post-baccalaureate experience. 
Page 4 
The petitioner submitted an English-language transcript, diploma certificate and degree certificate 
of Medical Sciences in _ issued to the beneticiary. The petitioner did not 
submit the oHicial foreign language documentation pursuant to 8 C.F.R. § 103.2(b)(3), which requires a 
ccrtitied English translation in support of a foreign language document, not instead of the foreign 
language document. The petitioner also tailed to submit an evaluation explaining the U.S. equivalence 
of the beneficiary's education. As the petitioner has not submitted sufficient evidence of the 
beneticiary's education, we withdraw the director's finding that the petitioner has established that the 
beneficiary is a member of the professions holding an advanced degree. 
The remaining issue is whether the petitioner has established that a waiver of the job otfer requirement, 
and thus an alien employment certitication, is in the national interest. As set forth in section 
203(b)(2)(8) of the Act, there are two means of seeking a waiver of the alien employment certification 
process in the national interest. The director discussed both means. Section 203(b)(2)(8)(ii) of the Act 
sets forth a program for physicians willing to work in an underserved area or a tacility under the 
jurisdiction of the Secretary of Veterans Affairs. On its face, this program does not cover individuals 
proposing to join the military and work as a military doctor. Nevertheless, we will review the evidence 
under this provision below. Finally, section 203(b)(2)(8)(i) of the Act sets forth a more discretionary 
waiver. We will also address the evidence under this provision. 
I. Non-Discretionary Physician Waiver (Section 203(b)(2)(8)(ii) of the Act) 
The regulation at 8 C.F.R. § 204.12(c) provides that a petitioner seeking a waiver as a physician 
intending to work in an underserved area must submit the following evidence: 
(l)(i) If the physician will be an employee, a full-time employment contract for the 
required period of clinical medical practice, or an employment commitment letter from 
a V A tacility. The contract or letter must have been issued and dated within 6 months 
prior to the date the petition is tiled. 
(ii) If the physician will establish his or her own practice, the 
physician's sworn statement committing to the full-time practice of 
clinical medicine for the required period, and describing the steps the 
physician has taken or intends to actually take to establish the practice. 
(2) Evidence that the physician will provide full-time clinical medical service: 
(i) In a geographical area or areas designated by the Secretary of HHS 
as having a shortage of health care professionals and in a medical 
specialty that is within the scope of the Secretary's designation for the 
geographical area or areas; or 
(ii) In a facility under the jurisdiction of the Secretary of V A. 
Page 5 
(3) A letter (issued and dated within 6 months prior to the date on which the petition 
is tiled) from a Federal agency or from the department of public health (or equivalent) 
of a State or territory of the United States or the District of Columbia, attesting that the 
alien physician's work is or will be in the public interest. 
(i) An attestation from a Federal agency must renect the agency's 
knowledge of the alien's qualifications and the agency's background in 
making determinations on matters involving medical affairs so as to 
substantiate the linding that the alien's work is or will be in the public 
interest. 
(ii) An attestation trom the public health department of a State, territory, 
or the District of Columbia must renect that the agency has jurisdiction 
over the place where the alien physician intends to practice clinical 
medicine. If the alien physician intends to practice clinical medicine in 
more than one underserved area, attestations Irom each intended area of 
practice must be included. 
(4) Evidence that the alien physician meets the admissibility requirements 
established by section 212(a)(5)(B) of the Act. 
(5) Evidence of the Service-issued waivers, if applicable, of the requirements of 
sections 212(e) of the Act, if the alien physician has been a J-1 nonimmigrant receiving 
medical training within the United States. 
Section 212(a)(5)(B) of the Act provides that a graduate of a medical school not accredited by a 
Secretary of Education approved body who is coming to the United States principally to perform 
services as a member of the medical professions is inadmissible unless he has passed parts I and II of 
the National Board of Medical Examiners Examination (or equivalent examination as determined by 
the Secretary of Health and Human Services) and is competent in oral and written English. 
The petitioner did not submit any of the above evidence. Rather, she submitted a letter from_ 
~LmsE:lor for the U.S. Army Health Care Team of the Department of the 
a letter she wrote to the President of the United States; a response from 
her inquiry had been forwarded to the Department of Homeland 
Security; a response from the Department of Homeland Security providing general information on the 
employment based classilications; the beneficiary'S transcript; the beneficiary'S foreign medical 
license; the bencticiary's 2002 Test of English as a Foreign Language (TOEFL) scores; the 
beneticiary's 2006 International English Language Testing System scores renecting scores of "7" in 
writing and speaking; and an unsigned letter from __ Pharmaceuticals confirming that the 
Page 6 
beneticiary has been working for that company as a sales representative and regional sales manager as 
of2004. 
In response to the director's request for additional evidence, which explained the above regulatory 
requirements, the petitioner submitted a personal letter asserting that her local Veterans Affairs 
hospitals have no openings and reiterating that her grandson intends to serve in the military. The 
petitioner also submitted an unsigned letter from the beneficiary stating: 
I. I agree to work full-time (at least 40 hours per week) in a clinical practice for an 
aggregate 5 years. I will follow the arrangement of. Hospital and be willing 
to work in any place required. 
2. I also agree to work in the general medicine, internal medicine as well as in my 
specialty areas of ENT and radiology as you may need. 
The petitioner further submitted the beneficiary's 2008 passing scores on the _ Medical 
Council examination. The petitioner failed to submit evidence that the U.S. Secretary of Health and 
Human Services has determined that the _ examination is equivalent to the Not;~,no I 
Medical Examiners Examination. In addition, the petitioner resubmitted the letter 
and the beneficiary's transcript. 
Thc director concluded that the petitioner had not submitted the required evidence set forth in the above 
regulations. On appeal, the petitioner asserts that she did not knowingly apply under section 
203(b)(2)(ii) of the Act and that the director failed to consider the beneticiary's willingness to serve in 
the U.S. Army. In addition, the petitioner submits a letter from her Reverend also asserting that the 
director incorrectly considered the petition under section 203(b )(2)(ii) and a letter from the beneficiary 
at1irming that he "would be glad to work on my first jobs in US for at least 5 aggregated years." 
Subsequently, the petitioner submitted the beneficiary's post-filing credentials, none of which address 
the regulations quoted above. Moreover, the petitioner must establish the beneficiary's eligibility as of 
the date of filing. See 8 C.F.R. §§ 103.2(b)(I), (12); Maller olKatigbak, 14 I&N Dec. 45, 49 (Reg'l. 
Comm'r. 1971). 
The petitioner has not submitted a contract or a letter of commitment. The beneficiary's personal 
atlirmation that he will work for five years does not fulfill this requirement. The petitioner also failed 
to submit the admissibility documentation required under section 212(a)(5)(8). Specifically, the 
petitioner did not submit the beneficiary's results of the National Board of Medical Examiners 
Examination or evidence that the Secretary of Health and Human Services has determined that the 
_ exam is equivalent. Thus, the petitioner has not established the beneficiary's eligibility 
under section 203(b )(2)(B )(ii) of the Act. As the petitioner has asserted, however, that she did not 
mean to seek benefits under that provision, we will now consider the beneficiary's eligibility under the 
discretionary provision at section 203(b)(2)(B)(i) of the Act. 
Page 7 
II. General Discretionary Waiver (Section 203(b)(2)(B)(i) ofthc Act) 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specitic definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely notcd 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 benelit the United States 
economically and otherwise .... " S. Rep. No. 55, IOlst Cong., 1st Sess., II (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29. 1991), states. in pertinent part: 
The Service believes it appropriate to leave the application of this test as t1exible 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 trom, or waiver ol~ the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Maller oj New York State Dep't. of Tramp, 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) 
must consider when evaluating a request for a national interest waiver. First, the petitioner must show 
that the alien seeks employment in an area of substantial intrinsic merit. Id at 217. Next, the petitioner 
must show 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 217-18. 
It must be noted that, while the national interest waiver hinges on prospective national benelit, the 
petitioner must establish that the alien's past record justifies projections of future benefit to the national 
interest. Jd. at 219. The petitioner's subjective assurance that the alien will, in the luture, serve the 
national interest cannot sutlice to establish prospective national benetit. We include the term 
"prospective" to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benelit to the national interest would thus be 
entirely spcculati ve. Id 
It is the position of USCIS to grant national interest waivers on a case-by-case basis, rather than to 
establish blanket waivers lor entire fields of specialization. Id. at 217. Thus, there is no blanket waiver 
lor physicians who atlirm a desire to join the military. 
We concur with the director that the beneficiary works in an area of intrinsic merit, medicine. The 
director then concludcd that the petitioner had not dcmonstratcd that the proposed bene!its of the 
beneficiary's work a military doctor would be national in scope. On appeal, the petitioner states: 
Page 8 
[T]he benefit (of national nature) of this petItIon rests in the very outstanding & 
repeated emphasis that our primary objective is olTering the beneficiary to work as a 
medical doctor in our US military service where medical doctors are always in need; 
that is what my request for NIW has always becn based on. 
The petitioner affirms that once the beneficiary arrives in the United States, "he will quickly begin 
his whole series of steps necessary for the eventual attainment of a US medical License (beginning 
with taking the step I, step 2 tests of ECFMG)." 
NYSDOT, 22 I&N Dec. at 217, n.3 provides examples of occupations that inherently provide benefits 
that arc local in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national interest, 
the impact of a single schoolteacher in one elementary school would not be in the 
national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sut1iciently in the 
national interest for purposes of this provision of the Act. 
[d. Significantly, Congress is presumed to be aware of existing administrative and judicial 
interpretation of statute when it reenacts a statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978). 
In this instance, Congress' awareness of NYSDOT is a matter not of presumption, but of 
demonstrable fact. In 1999, Congress amended section 203(b)(2) of the Act in direct response to the 
1998 precedent decision. Congress, at that time, could have taken any number of actions to limit, 
modify, or completely reverse the precedent decision, such as by applying the waiver to all 
physicians or general surgeons. Instead, Congress let the decision stand, apart from a limited 
exception for certain physicians working in shortage areas, as described in section 203(b)(2)(B)(ii) of 
thc Act. As discussed above, the petitioner has not demonstrated that the beneficiary qualifies under 
that provision and, in fact, asserts that she is not applying under that provision. Because Congress 
has made no further statutory changes in the decade since NYSDOT, we can presume that Congress 
has no further objection to the precedent decision. 
In light of the above reasoning in NYSDOT, the petitioner will not provide benefits that are national 
in scope. While a military doctor may move from one base to another and treat soldiers trom 
different locations, the benefits at anyone time are purely local. 
It remains, then, to determine whether thc beneficiary will benefit the national interest to a greater 
extent than an available U.S. worker with the samc minimum qualifications. On appeal, the 
petitioner states: 
Page 9 
In the present discussion, the national benefit (or interest) is derived from the alien's 
successful participation of the proposed "process." If the alien's participation 
depends on his qualification for the NIW waiver, the labor certification requirement in 
this third factor could be a road block to his access to NIW, his participation in the 
process would then be denied, hence the national interest (or benefit) otherwise 
attributable to this alien would be adversely affected. QED. 
The petitioner fails to understand the standard for the benefit sought. As stated above, there is no 
blanket waiver for physicians professing their intention to join the military to serve as a military 
doctor. Rather. eligibility for the waiver 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 qualitY for a national 
interest waiver. At issue is whether this beneficiary's contributions in the field are of such unusual 
significance that he 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 burden of proof. 
A petitioner must demonstrate that the beneficiary has a past history of achievement with some 
degree of influence on the field as a whole. [d. at 219, n. 6. 
As of the date of filing, the petitioner had not worked as a physician for almost five years. Rather, 
according to the Form ETA 750B that he' he had been working as a medical representative 
and product manager promoting pharmaceuticals. The record lacks any 
evidence of the petitioner's specific prior medical accomplishments that have influenced the field of 
military medicine as a whole and thereby establish the beneficiary's ability to benefit the national 
interest. See id 
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 
otIcr based on national interest. Likewise, it docs 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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.