dismissed EB-2 NIW Case: Medicine

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
I 
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 U. S. Citizenship 
and Immigration 
pu~~lc b;U Services 
IN RE: 
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. $ 1 153(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 fiuther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 103.5(a)(l)(i). 
UDdh : ik. 
. /I .fohn F. Grissom 
\l-i~cting Chief, Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician. At the time he filed the petition, the petitioner was a fellow 
at Albert Einstein Medical Center, Philadelphia, Pennsylvania. The petitioner asserts that an exemption 
fi-om the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree, but that the petitioner has not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a statement from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 1 0 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services] 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 fiom, or waiver of, the job offer will be in the national interest. Each 
case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 2 15 (Comrnr. 1998), 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. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seelung 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
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. 
We also note that 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 offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a gven 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. 
In a statement accompanying the petition's initial filing, counsel stated that the petitioner is "a foremost 
expert in the field of hepatology," a medical specialty relating primarily to the liver. Counsel stated that 
the petitioner's "impressive research studies in addition to her [sic] superior clinical skill, render him 
exceptional and unique. He clearly stands out as one of the very few at the top of her [sic] field." 
Counsel stated that the petitioner "is one of literally only a few physicians in the nation with expertise 
in" SEPET, a treatment modality used at "only four centers in the United States." Simple exposure to 
advanced technology constitutes, essentially, occupational training which can be articulated on an 
Page 4 
application for a labor certification. Special or unusual knowledge or training, while perhaps attractive 
to the prospective U.S. employer, does not inherently meet the national interest threshold. The issue of 
whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. Matter of New York State Dept. of Transportation at 221. If the machine is used 
at "only four centers in the United States," then it is not surprising that doctors elsewhere are not versed 
in SEPET's use. Furthermore, counsel's attempt to compare the petitioner with all "physicians in the 
nation" is misguided because most physicians are not hepatologists. The petitioner's familiarity with a 
device used only by hepatologists does not establish his superiority to other physicians; it is, rather, a 
hallmark of his specialization. Counsel listed other functions that are said to distinguish the petitioner 
from most other physicians, but here again this is largely because most physicians are not hepatologists, 
and they would not be expected to know any advanced hepatological procedures. 
With regard to counsel's assertion that SEPET is in use at "only four centers," the petitioner's 
curriculum vitae indicates that the petitioner participated in "[a] Phase I prospective longitudinal 
feasibility trial of safety, tolerance and efficacy of SEPET in patients with Acute Exacerbation of 
Chronic Liver Disease. . . . Albert Einstein is only one of the 4 medical centers in the country which is 
participating in this FDA approved trial." Counsel, in describing the petitioner's involvement in the 
SEPET project, failed to point out that the regimen was in limited use because it was an unproven 
method still in Phase I clinical trials. 
We note that, in his detailed curriculum vitae, the petitioner did not claim any specialized training in 
hepatology prior to July 2006, when he began what he described as a one-year fellowship in hepatology 
at Albert Einstein Medical Center, giving him about eight months of training in hepatology at the time 
he filed the petition in February 2007. The petitioner stated that he would then move on to a two-year 
gastroenterology fellowship from July 2007 to June 2009. The petitioner referred to these fellowships 
as part of his "training"; there is no evidence that the petitioner, as of the date of filing, had ever 
independently practiced as a fully-trained and qualified hepatologist. Rather, it appears that the 
petitioner's medical training is still ongoing as of this writing. The record shows that, as of July 1, 
2006, the petitioner was licensed as a Graduate Medical Trainee in Internal Medicine. 
Counsel related several instances in which the petitioner's care saved the lives of acutely ill patients. 
Anecdotal assertions of hs kind carry little weight in this proceeding. Acute care is a basic job 
requirement for many physicians. Furthermore, individual clinical patient care is inherently local rather 
than national in scope. CJ: Matter of New York State Dept. of Transportation at 2 17 n.3. 
Counsel asserted that the petitioner's "role as a physician extends beyond merely attending to a small 
community of patients in clinical or research settings. . . . His original research has had a direct impact 
on the field and has gained him nationwide recognition. . . . [The petitioner] has also gained 
international acclaim for both his clinical and novel research works." Counsel is correct that published 
research has broader reach than clinical care. It is through this avenue that the petitioner's efforts are 
national in scope. Nevertheless, national scope is only one necessary criterion for the waiver; it cannot 
suffice merely to establish that the petitioner conducts and publishes hepatology research. The 
petitioner must also establish the impact of his research, in comparison with research performed by 
Page 5 
others in his specialty. In this regard, counsel asserted that the petitioner's "research innovations have 
revolutionized the field." We shall examine, presently, the evidence put forward to support this claim. 
In discussing the petitioner's impact as a researcher, counsel referred to the petitioner's 
"unprecedented number of research studies." Counsel did not elaborate or cite any evidence to show 
that the petitioner has conducted more research studies than any hepatologist who came before him. 
Without such evidence, there is no support for the claim that the petitioner is responsible for an 
"unprecedented number of research studies." The unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of laureano, 
19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner submitted five witness letters in support of the petition. All five witnesses are, like the 
etitioner based in Philadelphia; none claim primary expertise in hepatology. -~ 
D is an Associate Professor at Drexel University and Director of Drexel's Internal Medicine 
Residenc Program at Graduate Hospital, where the petitioner trained from 2003 to 2006. 
 Dr. 
d stated that the petitioner "is considered an expert" in various areas of hepatology, and "has 
acquired extensive skills matched by few others in the management of' hepatitis. 
, Medical Director for Ambulatory Care Services at Graduate Hospital, deemed 
the petitioner to be ''truly an innovator at the cutting edge of medical technology at Albert Einstein 
Medical Center." highlighted the petitioner's work with the experimental SEPET 
technology, but gave no indication that the petitioner was in any way involved in its design. 
a Clinical Associate Professor at Thomas Jefferson University and an Adjunct 
at Drexel Universitv. stated that the petitioner "is currently conducting important 
and novel research" relating to various experimental treatments for hepatitis 6" claimed 
that the petitioner is "regarded as one of the nation's most distinguished hepatology fellow s but the 
record contains no credible evidence of any sort of reputation outside of Philadelphia. [1 
claimed that the petitioner "is a crucial member of the medical team that won the 2005 Albert 
Schweitzer Gold Medal. This honor was bestowed upon the hepatology team at Albert Einstein 
Medical Center for the leading work they've done to advance organ transplantation procedures." This 
assertion is somewhat misleading, because the petitioner was not at the Albert Einstein Medical Center 
in 2005; he joined that team after they received the award. The prestige of an institution that employs or 
trains the petitioner is not affirmative evidence that the petitioner qualifies for immigration benefits 
because of that reflected prestige. (When noting that all of the petitioner's initial witness letters came 
from physicians in Philadelphia, we observe, also, that the petitioner submitted no letters fiom the 
faculty at Albert Einstein Medical Center, despite claims of his widely influential leadership role there.) 
-2 a Clinical Assistant Professor of Rheumatology at the University of 
Pennsylvania, stated: 
[The petitioner] is a physician-scientist of the highest caliber. [The petitioner] is a noted 
hepatology expert who performs the most innovative life saving procedures using state 
of the art technology in his treatment of liver diseases. . . . 
Based on his outstanding record as a physician, [the petitioner] was selected for an 
Advanced Hepatology Fellowship at Albert Einstein Medical Center. 
As noted previously, the petitioner himself referred to the fellowship as "training." 
 went 
on to describe each of the petitioner's professional memberships, conference presentations, and other 
activities as being a singular hallmark of influence and acclaim. Hyperbolic assertions of this lund carry 
negligible weight without documentary support. Documentation of the petitioner's memberships and 
other activities does not prove that they are as significant as witnesses claim. We note that Dr. 
and the petitioner both attended K.J. Somaiya Medical College in Bombay (Murnbai), India, 
in the mid-1990s, and both and the petitioner were at Drexel University's Graduate 
Hospital in 2003-2004. 
1, Attending Physician at the University of Pennsylvania's Presbyterian 
Medical Center, praised the petitioner's "extraordinary" qualifications and called him "a leader in the 
field of medicine" who "has led groundbreaking research that has had a direct impact on the future of 
the field throughout the nation." 
Given the nature of the witnesses' claims regarding the petitioner's reputation and influence in the 
field, there ought to exist evidence of that reputation and influence beyond the attestations of 
physicians in the city where the petitioner works. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings, Matter 
of Sofici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Regl. Commr. 1972)). The petitioner's supporting evidence showed him to have 
participated in research projects, and to have joined various professional organizations, but the 
petitioner's initial submission is devoid of documentary evidence to establish anything resembling 
the renown described by his local colleagues. 
On October 2, 2007, the director issued a request for evidence, instructing the petitioner to submit 
documentary evidence to support the claims put forth in the initial submission. In response, the 
petitioner submitted three new witness letters. Two of the new letters were from prior witnesses. 
stated: "I strongly believe that [the petitioner] is one of the country's leading 
hepatologists today. . . . I have . . . found it a rare occasion to see someone with [the petitioner's] 
level of national and international regard." Evidence of such regard outside Philadelphia continues 
to be elusive. 
claimed: "It is common knowledge in our medical community that he is seen as a 
pioneer and lead expert in liver and biliary diseases. In fact, his peers rely upon his work as a 
clinician and researcher all over the country. Furthermore, I know that his publications are read 
nationally." 
 did not explain how he knew this to be the case. If he examined 
objective evidence to that effect, he neither identified nor shared that evidence. The director had 
specifically instructed the petitioner to submit documentary evidence to show that the witnesses' 
claims were credible and grounded in fact. The petitioner has responded to that request by 
submitting more letters from the same witnesses. The petitioner's response to the director's notice 
is, therefore, deficient. 
The only new witness was 
 now a Clinical Fellow at Harvard Medical School. This 
letter would seem to show an extension of the petitioner's reputation outside of Philadelphia. The 
record, however, shows that rained at Graduate Hospital in Philadelphia from 2001 to 
2004 and again from 2005 to 2006, and collaborated with the petitioner on a 2004 conference 
presentation. stated that the petitioner "has truly distinguished himself in his field by 
demonstrating his extraordinary abilit to erform the most innovative procedures in his field," but 
offered no details in this regard. only specific assertion concerned the petitioner's 
"novel discovery as to how all Patients with Hepatitis C over the age of 50 should have screening 
colonoscopy prior to such therapy." This appears to be a recommendation rather than a "discovery," 
and the record is silent as to how widely this recommendation has been implemented. 
The director denied the petition on February 1, 2008, stating that the petitioner had failed to establish 
that the petitioner's "accomplishments are of such unique significance that the labor certification 
requirement can be waived." 
On appeal, counsel states: "We respectfully again point to the evidence initially submitted with the 
original filing as well [as] the response to the request for evidence." The AAO has examined that 
evidence. The gulf between the objective documentary evidence on the one hand, and the witness 
letters on the other hand, is such that we can afford little credibility to the exaggerated claims in those 
letters. 
Counsel asserts that the petitioner is "able to master many of the most advanced procedures in the field 
and also to teach those procedures to peers . . . thereby creating a ripple effect in making the 
performance of these very important cutting-edge modern procedures more widespread on a national 
level." The assertion that the petitioner can learn new methods and teach them to others does not 
distinguish him from others in his field, absent reliable evidence that few physicians are capable of 
learning these techniques and even fewer are capable of passing them on. The only indication of the 
national scope of the petitioner's work is in the form of research, and the petitioner has carried out that 
research in the context of continued university training. The record does not show that the petitioner 
intends to continue pursuing published research after his training is complete, or that any entity that 
conducts such research has shown any interest in employing the petitioner over the long term. Thus, 
while the petitioner's research work has at least the potential for national scope, the record does not 
indicate that the petitioner will continue to engage in such research. His main focus appears, instead, to 
be the local, clinical practice of medicine. With respect to the petitioner's published and presented 
research, the record contains no documentary evidence (such as independent citations) to show that the 
petitioner's work has indeed had anytlung like the influence that his witnesses have claimed. 
Page 8 
The record demonstrates that the petitioner is a qualified physician who has received some training 
at well-regarded institutions, but there is no credible support for the claim that the petitioner is an 
internationally renowned researcher whose methods have influenced the entire field of hepatology. 
The intrinsic merit of the petitioner's specialty is not in dispute, but the petitioner has failed to 
submit persuasive evidence to show that he, individually, serves the national interest to a 
substantially greater degree than other physicians trained in that same specialty. 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied 
by a labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.