dismissed EB-2 NIW Case: Medicine

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: . APR t 8 1014 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION : Immigrant Petit ion 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. § l153(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, 
)A b eAdY)ui;-._) 
(l Ron Rosenberg 
b Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
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 researcher. At the time of filing, the petitioner was 
working as a fellow in the Division of Pulmonary, Allergy, and Critical Care Medicine at the 
Subsequently, on July 1, 2013, the petitioner began his 
third vear of fellowship training in the Section of Pulmonary and Critical Care Medicine at 
_ 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 submits an August 17, 2013 letter generally reiterating the "evidence [that] 
was [previously] submitted showing that [the petitioner] has made significant contributions to the field, 
that his work has impacted the national interest, especially his research work, and that he has 
distinguished himself from his peers, thereby justifying the waiver of labor certification." The 
petitioner does not allege any error on the part of the director or point to any evidence that the director 
failed to consider. 
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. 
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The record reflects 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, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pettinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to 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 Dept 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 he 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 he will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. I d. at 217-18. 
The petitioner has established that his work as a physician researcher is in an area of substantial 
intrinsic merit . With regard to the second prong of the national interest waiver test, the director 
found that the proposed benefits of the petitioner's work as a pulmonary and critical care researcher 
would not be national in scope. The petitioner, however, performs research involving Idiopathic 
Pulmonary Fibrosis (IPF). Improving diagnostic and treatment methods for IPF would substantially 
benefit the U.S. healthcare system. As the documentation submitted by the petitioner is sufficient to 
demonstrate that the proposed benefits of his pulmonary research are national in scope, the director's 
finding is withdrawn . It remains, then, to determine whether the petitioner will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. 
Although the national interest waiver hinges on prospective national benefit, the petitioner must 
establish his past record justifies projections of future benefit to the national interest. Id. at 219. The 
petitioner's subjective assurance that he 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 
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NON-PRECEDENT DECISION 
Page 4 
future contributions by the petitioner, rather than to facilitate the entry of an individual with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regarding the overall importance of a petitioner's area of expertise 
cannot suffice to establish eligibility for a national interest waiver. NYSDOT at 220. At issue is 
whether this petitioner's contributions in the field are of such significance that he merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification he 
seeks. A petitioner must demonstrate a past history of achievement with some degree of influence 
on the field as a whole. ld. at 219, n. 6. In evaluating the petitioner's achievements, original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Jd. at 221, n. 7. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on January 15, 2013. In 
addition to documentation of his patent applications, publications, conference presentations, and 
medical credentials, the petitioner submitted reference letters discussing his activities in the field. 
The director denied the petition on August 7, 2013. The director acknowledged the petitioner's 
submission of reference letters, but determined that they failed to show that his past 
accomplishments were sufficient to demonstrate eligibility for the national interest waiver. In 
addition, the director found that the reference letters focused on the potential future impact of the 
petitioner's work rather than how his research efforts had already affected the field. The director 
also pointed to a lack of citation of the petitioner's work by others in the field. The director therefore 
concluded that the petitioner failed to establish that an exemption from the requirement of a job offer 
would be in the national interest of the United States. 
On appeal, the petitioner states: 
The original application as well as the response to the request for evidence documented 
numerous publications and presentations in major national forums. Furthermore, [the 
petitioner's) work has been extensively cited as was also documented. 
Also, his patent applications have received national recognition and have been cited -
In 2010, an invention disclosure that he co-authored was selected out of a pool of 225 
invention disclosures, to be submitted for a patent application by the 
· · to the United States 
Patent and Trademark Office (USPTO). This patent apphcatwn IS titled 
(Publication num er: 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
A second patent application titled ' 
has been filed to the World Intellectual Property Organization (WIPO). 
(Publication number: International Application number: 
The petitioner asserts that his "work has been extensively cited," but the submitted evidence shows 
only one cite to his patent application entitled " 
_ by his colleagues at the There is no 
documentary evidence to support the petitioner's extensive citation claim. 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 (Re2:'l Comm'r 1972)). Moreover, the submitted 
citation is a self-cite by the petitioner's coauthor Dr. Self-citation is a normal, 
expected practice. Self-citation cannot, however, demonstrate the response of independent 
researchers. The petitioner has not established that the level of independent citation of his work is 
indicative of his influence on the field as a whole. 
The petitioner further states: "The fact that [the petitioner] serves in a lead role at 
. 
. . should be also deemed relevant to his significant national reputation, as is of 
course one of the top medical institutions in the entire country." The petitioner's July 2013 
fellowship appointment at· however, post-dates the filing of the petition. Eligibility 
must be established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of lzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that 
USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." !d. at 
176. Accordingly, the petitioner's July 2013 fellowship appointment cannot be 
considered as evidence to establish his eligibility at the time of filing. 
In addition, the petitioner states: "The testimonial[s] submitted documented [the petitioner's] 
outstanding clinical reputation as well as the practical importance of his research work to the 
medical community." 
Dr. Professor of Medicine, and Chief of the Division of Pulmonary, Allergy and 
Critical Care Medicine, stated: 
[The petitioner] discovered and is a co-inventor of ~ and 
evaluation whose invention relates to the discovery of a panel of and 
genes in the peripheral blood that could be used to diagnose IPF and distinguish this 
condition, for the first time, from other lung ailments. His invention also relates to the 
identification of associated with IPF disease progression that could be used to 
monitor the disease over time. This milestone invention received an application publication, 
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Page 6 
the step prior to being awarded a patent, by the U.S. Patent and Trademark Office under 
* * * 
Moreover, [the petitioner] has submitted a second patent al2£lication to the U.S. Patent and 
Trademark Office for his discoverv and invention on 
where he discovered the first 
patients destined for premature death 
and invented a • 
based on the expression of three genes from the identified gene expression signature. 
Implications of predicting mortality in IPF are significant because risk stratification based on 
a blood test will have valuable and inexpensive applications in determining which patients 
should be referred to pre-transplantation assessments and to prioritize organ allocations to 
those who have been evaluated and are destined for premature death, particularly given the 
ongoing shortage of organs available for transplantation. 
Dr. points to two patent applications that the petitioner coauthored with Dr. Dr. 
Dr. and others, but there is no documentary evidence showing that 
a patent has been granted for either of the preceding patent applications. Further, although issuance 
of a patent recognizes the originality of an idea, it does not demonstrate that the petitioner has 
influenced the field as a whole through his development of the innovation. A patent is not 
necessarily evidence of a track record of success with some degree of influence over the field as a 
whole. NYSDOT at 221, n. 7. Rather , the significance of the innovation must be determined on a 
case-by-case basis. !d. In this instance, there is no documentary evidence showing that the 
petitioner's invention has been implemented by medical centers as a diagnostic or evaluation 
technique for those afflicted with IPF, or that his work has otherwise influenced the field as a whole. 
Dr. further stated: 
Currently, [the petitioner] is an expert pulmonary and critical care researcher conducting 
innovative research studies funded by ten grants from the world-renowned National Institutes 
of Health (NIH), an agency of the U.S. Department of Health and Human Services and the 
primary agency of the U.S. government responsible for biomedical and health-related 
research. The NIH was responsible for 28%, about $26.4 billion, of the total biomedical 
research funding spent annually in the U.S. as of 2003. A research scientist having his 
research projects funded by many grants from the NIH is evidence that the scientist is 
nationally regarded as a leading scientist whose studies have had a significant impact on the 
biomedical research community. Having the majority of [the petitioner's] research studies 
funded by the NIH evinces the reputation that he has garnered by the scientific community , 
including the NIH, as an outstanding researcher in his field. 
Dr. comment s on the petitioner's participation in research projects funded by NIH grants 
awarded to the petitioner's superiors at the A substantial amount of 
medical research is funded by grants from a variety of public and private sources. Dr. ' does 
(b)(6)
NON-PRECEDENT DECISION 
Page 1 
not specify whether the petitioner was a principal investigator on any research studies funded by the 
NIH. The past achievements of the principal investigator are a factor in grant proposals because the 
funding institution has to be assured that the investigator is capable of performing the proposed 
research. Nevertheless, the ability to secure funding for a research project does not differentiate the 
petitioner from other capable medical researchers, or demonstrate that his work has already 
influenced the field as a whole. 
Dr. continued: 
At the [the petitioner] supervises and instructs new 
physicians and medical students in the performance of complex pulmonary and critical care 
procedures. [The petitioner's] practical teaching approach has affected each physician whom 
he has instructed. Over the course of their careers, these physicians move throughout the 
U.S., and the lessons taught by [the petitioner] beneficially affect their patients. 
Dr. comments on the petitioner's supervision and instruction of physicians and medical 
students at the but there is no documentary evidence 
showing that his teaching methods are being utilized at a number of medical centers or that his 
instructional lessons have otherwise affected the pulmonary and critical care fields as a whole. 
Dr. Professor of Medicine, and Director of the Fellowship Training Program, Division of 
Pulmonary, Allergy and Critical Care Medicine, stated: 
[The petitioner] is an outstanding pulmonary and critical care specialist with expertise in the 
performance of a variety of emergency, life-saving diagnostic and therapeutic procedures. 
He is one of the few physicians in our specialty with expertise in the placement of central 
venous catheters using a long-axis approach under ultrasonography. Compared with standard 
ultrasound guidance, this technique significantly improves the success rate and safety of 
central venous catheterization. 
* * * 
Although it has become increasingly difficult for internists to become proficient in the sub­
specialties , [the petitioner] is one of the few who has mastered the sub-specialties of both 
Pulmonary and Critical Care Medicine. 
[The petitioner's] expertise in Critical Care Medicine includes respiratory failure, heart 
failure and other cardiovascular diseases, severe infections neurosurgical critical care, and 
end of life care. As a leading Pulmonologi st, [the petitioner] diagnoses and treats respiratory 
diseases, including Cystic Fibrosis, Chronic Obstructive Pulmonary Disease (COPD), 
pneumonia acute respiratory distress syndrome (ARDS), interstitial lung disease, lung 
cancer, Pulmonary hypertension and sarcoidosis .... Few physicians are able to specialize in 
Pulmonary Medicine. [The petitioner] is thus one of the rare few. 
(b)(6)
NON-PRECEDENT DECISION 
Pagel) 
* * * 
[The petitioner's] extensive background allows him to better diagnose and treat cases 
requiring the attention of multiple specialists. As a pulmonologist and critical care physician 
at the top of his field, [the petitioner's] ability to diagnose advanced complications is second 
to none, and his clinical skills are outstanding. 
Dr. points to the petitioner's skills and knowledge in various aspects of pulmonary and critical 
care medicine, but special or unusual knowledge or training does not inherently meet the national 
interest threshold. NYSDOT at 221. Any claim that the petitioner possesses useful skills, or a 
"unique background" relates to whether similarly-trained workers are available in the United States 
and is an issue under the jurisdiction of the U.S. Department of Labor through the labor certification 
process. In addition, Dr. ails to provide specific examples of how the petitioner's past work 
has already influenced the field as a whole. 
Dr. Endowed Chair for Pulmonary Research, 
ivision of Pulmonary, Allergy and Critical Care Medicine, 
, stated: 
[The petitioner] was the first scientist to identify diagnostic 
profiles differentiating IPE patients from healthy individuals, 
presented at the 2009 1 
first scientist to find 
~ ~ 
[a] discovery that was 
. He was also the 
of 
patients indicating premature mortality. He invented the first outcome gene chip 
in IPE based on the expression of three genes from the identlhed gene expression profile; 
findings that were presented at the 2011 
* * * 
rThe netitionerl was also the first researcher to demonstrate the value of 
_ _ at different time points for 
progression monitoring. His pioneering finding may potentially replace the cunent modality 
of monitoring IPE progression by the use of periodic chest CT scans which exposes the 
patients to continuous radiation exposure and is extremely costly. This innovative finding 
was presented at the 2009 Joint 
and published in a review article in Biomarkers in Medicine. 
* * * 
He has had his reviews and research findings published in leading high-impact journals 
including American Journal of Respiratory and Critical Care Medicine, Cancer Research, 
Biomarkers in,Medicine. and UvToDate. He has been invited to present his findings at the 
2009 and 2011 , the · 
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NON-PRECEDENT DECISION 
Page 9 
and the 201 
Dr. comments on the petitioner's published and presented work, but there is no documentary 
evidence showing that the petitioner's articles and abstracts are frequently cited by independent 
researchers or have otherwise affected the field as a whole. Although the petitioner's research findings 
have value, any research must be original and likely to present some benefit if it is to receive funding 
and attention from the medical or scientific community. In order for a university, publisher or 
grantor to accept any research for graduation, publication or funding, the research must offer new 
and useful information to the pool of knowledge. Not every physician who performs original 
research that adds to the general pool of knowledge in the field inherently serves the national interest 
to an extent that is sufficient to waive the job offer requirement. 
With regard to the petitioner's presentations at medical conferences such as those coordinated by the 
American Thoracic Society, many professional fields regularly hold meetings and conferences to 
present new work, discuss new findings, and to network with other professionals. These meetings 
and conferences are promoted and sponsored by professional associations, educational institutions, 
healthcare organizations, employers, and government agencies. Although presentation of the 
petitioner's work demonstrates that his research findings were shared with others and may be 
acknowledged as original based on their selection to be presented, there is no documentary evidence 
showing his work has impacted the field as a whole. 
Dr. further stated: 
[The petitioner's] superior skills as a critical care specialist are particularly important to the 
nation in light of the unprecedented shortage of intensivists in intensive care units 
nationwide. The Committee on Manpower for Pulmonary and Critical Care Societies has 
forecasted that the demand for Critical Care services in the United States will exceed the 
capabilities of the current delivery system. Today, intensivists provide care in only 29% of 
ICUs. 
Dr. points to "the unprecedented shortage of intensivist s in intensive care units" in the 
United States. The unavailability of qualified U.S. workers or the amelioration of local labor 
shortages, however, are not considerations in national interest waiver determinations because the 
labor certification process is already in place to address such shortages. NYSDOT at 218. Again, the 
issue of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction 
of the U.S. Department of Labor through the labor certification process. Id. at 221. With regard to 
physicians working in underserved areas, Section 5 of the Nursing Relief for Disadvantaged Areas 
Act of 1999, Pub. L. 106-95 (November 12, 1999), specifically amended the Act by adding section 
203(b)(2)(B)(ii) to create special waiver provisions for certain physicians in medically underserved 
areas or Veterans Administration facilities. This exception is limited to physician s who follow 
specific requirements set fmth in the regulation at 8 C.P.R. § 204.12. The petitioner, however , does 
not claim eligibility under section 203(b )(2)(B )(ii) of the Act. 
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Page 10 
Dr. a Professor of Medicine at the _______ .._...Jwho coauthored two patent 
applications with the petitioner, stated: 
As a pulmonologist and critical care physician-scientist, [the petitioner] directly affects the 
daily care of patients. Impressively, he played a significant role in the discovery of a panel 
of , that may be used to diagnose Idiopathic Pulmonary Fibrosis and 
distinguish this condition from other lung ailments. This has the potential to revolutionize 
the medical community's ability to diagnose, predict mortality, and monitor progression of 
this lung disease that has no established cause nor any proven treatments to improve survival 
other than lung transplantation. 
* * * 
Furthermore, [the petitioner] is nationally recognized for his innovative research on "Gene 
ex ression and outcome profile of idiopathic Pulmonary Fibrosis patient subgroups based on 
scores' where he was the first scientist to identify gene expression signature 
associated with increased ~ in Idiopathic Pulmonary Fibrosis (IPF) that may lead to 
the development of drugs that could potentially treat shortness of breath in IPF and to be the 
pillar to develop treatments focusing on patients' quality of life. This groundbreaking finding 
was presented at the American Thoracic Society International Conference. 
[The petitioner's] research studies have been published in prominent high-impact journals 
including the American Journal of Respiratory and Critical Care Medicine, Cancer 
Research, and Biomarkers in Medicine; he currently has manuscripts under peer review in 
Science Translational Medicine and UpToDate. He was also invited to present his findings 
at national and international conferences including the 2009 and 2011 American Thoracic 
Society Annual International Conference, the.L 
..._.. .................... ------ ---, ___ _.._ 
Dr. comments that the petitioner's discovery "may be used to diagnose" and distinguish IPF 
from other lung ailments and that it "has the potential to revolutionize the medical community's 
ability to diagnose, predict mortality, and monitor progression of this lung disease." In addition, Dr. 
asserts that the petitioner's identification of the gene expression signature associated with 
increased in IPF "may lead to the development of drugs that could potentially treat 
shortness of breath in IPF." The submitted evidence, however, does not show that petitioner's work 
has yet been utilized in the field as a method for IPF medical diagnosis or drug treatment. 
Speculation about the possible future impact of the petitioner's work is not evidence, and cannot 
establish eligibility for the third prong of the national interest waiver test. Again , eligibility must be 
established at the time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 
49. Dr. also mentions that the petitioner's work has been published in various journals and 
presented at national and international medical conferences. There is no documentary evidence 
NON-PRECEDENT DECISION 
rage Jt 
showing, however, that the petitioner's work has been frequently cited by independent researchers or 
that his findings have otherwise affected the field as a whole. 
D -
Cntlcal Care Medicme, 
· Professor of Medicine, and Chief, Division of Pulmonary and 
. stated: 
In recognition of his respected status in his field, [the petitioner] has been given important 
roles at prominent medical institutions. He is a rulmonologist and critical care specialist, 
educator, and research scientist at the Division of 
Pulmonary, Allergy and Critical Care Medicine at the He is also a 
member of the _ _ Pulmonary, Allergy and Critical Care Medicine 
Fellowship Committee. During this appointment, [the petitioner] has received numerous 
accolades and awards, including the University of Pittsburgh Medical Center, Presbyterian­
Shadyside Intern of the Year Award, Junior Resident of the Year Award, and Senior Resident 
of the Year Award in recognition of his outstanding clinical expertise in the field. . . . [The 
petitioner] was also recently selected as one of the top Pittsburgh Internal Medicine 
specialists by the International Association of Internists. 
Dr. points to the petitioner's "important roles" at the University of Pittsburgh, but it is not 
unusual that a medical institution would select a well-qualified applicant for a given position. 
Selection for a medical training fellowship is not intrinsic proof of eligibility for the national interest 
waiver. In addition, Dr. Sznajder comments on the petitioner's local and institutional awards at the 
University of Pittsburgh. Occupational experience and recognition for achievements are elements 
that can contribute toward a finding of exceptional ability. See 8 C.P.R. § 204.5(k)(3)(ii)(B) and (F), 
respectively. Exceptional ability, in turn, is not a self-evident ground for the national interest 
waiver. See section 203(b)(2)(A) of the Act. The USCIS regulation at 8 C.P.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 individual seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that individual 
cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in her field of expertise. Particularly significant awards may serve as 
evidence of the petitioner's impact and influence on his field, but the petitioner has failed to 
demonstrate that the awards he received (which are limited to those in the training phase of their 
medical career) are indicative of his influence on the field as a whole. 
Dr. Ivan Rosas, Assistant Professor of Medicine, Harvard Medical School, stated: 
Evidence of [the petitioner's] outstanding reputation as a nationally-respected researcher can 
be found in the publications, presentations, and his being awarded a patent application 
publication for his invention in IPF diagnosis. His research studies and reviews have been 
published in Biomarkers in Medicine, Cancer Research, UpToDate and American Journal of 
(b)(6)
NON-PRECEDENT DECISION 
Yage lL 
Respiratory and Critical Care Medicine with a very significant contribution, relating the 
predictive potential of peripheral blood mononuclear cells in IPF, under review by the 
renowned journal Science Translational Medicine. Moreover, he received invitations to 
present his research findings at prominent medical conferences including the American 
Thoracic Society International Conference in 2009 and 2011, the 
Pulmonary Fibrosis Conference, and the 
In the same manner as previous references, Dr. mentions the petitioner's patent application for 
the IPF diagnosis invention, joumal publications, and conference presentations, but there is no 
documentary evidence showing that the petitioner's work has been frequently cited by independent 
researchers or has otherwise influenced the field as a whole. 
Frequent citation by others is not the only means by which to show the petitioner's impact on his 
field. Independent reference letters can play a significant role in this respect. Here, the letters 
submitted by the petitioner discuss the importance of his work and its potential value. These claims 
support the finding that the petitioner seeks employment in an area of substantial intrinsic merit and 
that the proposed benefits of his work have a national impact. However, as it relates to the third 
prong of NYSDOT, the reference letters fail to establish the depth or extent of petitioner's influence 
on the field as a whole. Descriptions of the petitioner's novel findings and speculation about their 
potential future impact are not sufficient to establish that the petitioner will serve the national 
interest to a substantially greater degree than other similarly qualified workers. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not 
only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding a petitioner's eligibility for the 
benefit sought. /d. The submission of letters of support from the petitioner's professional contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the petitioner's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). Thus, the content of the expetts' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters solicited 
by a petitioner in support of an immigration petition are of less weight than preexisting, independent 
evidence that one would expect of a physician researcher who has influenced the field as a whole. 
(b)(6) NON-PRECEDENT DECISION 
Yage l.J 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. Although the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the petitioner must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole." NYSDOT at 219, n.6. 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. 
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, that burden has not been met. 
ORDER: The appeal is dismissed.