dismissed EB-2 NIW Case: Medicine

(b)(6)
DATE: NOV 0 4 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administra tive Appeals Office (AAO) 
20 Massachu setts Ave., N.W., MS 2090 
Washingt on, 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: 
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: Uwww.uscis.gov /forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
gf(f0 
ft'Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office 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, s ecifically as an orthopedic surgeon. At the time he filed 
the petition, the petitioner was a fellow at . , but he already had 
a job offer to work at _; where he has since begun working. 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 a statement, some of which repeats elements from earlier submissions. 
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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 , Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave 
the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(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. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same 
minimum qualifications. /d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. /d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. /d. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability " as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By 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. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 28, 2013. On Part 
6, lines 1 and 3 of that form, the petitioner indicated that he seeks employment as a "physician" 
whose duties are to "diagnose and treat patients." In accompanying statement, the assertion that the 
benefit from the petitioner's work is national in scope rested on a discussion of the research duties 
that the petitioner has undertaken during his medical training. The introductory statement addressed 
the labor certification issue: 
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Please note that [the petitioner] has extensive responsibilities as both a clinician and 
as a medical researcher. However, his contractual services encompass clinical work 
only. This is customary in the profession. Virtually all academic researchers who are 
not yet permanent residents are not reimbursed contractually for any research work 
that they may perform. Furthermore, since the Department of Labor does not allow 
for a combination of occupations when filing a labor certification, such a combination 
is not possible. A very significant percentage of the patients that [the petitioner] 
treats receive Medicare Medicaid [sic]. His outstanding diagnostic abilities allow him 
to diagnose these patients at earlier stages of their illness then [sic] the large majority 
of his colleagues would be able to. This saves the federal government a great amount 
of money because the need for later much more expensive and often invasive 
procedures is avoided .... 
[The petitioner] is very well-known for his diagnostic ability. He is also known for 
his ability to deal with tremendous efficiency and precision in emergency situations 
where there is literally no margin for error and not a minute to waste. 
The petitioner submitted no evidence to support the above claims. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of 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)). 
There is no blanket waiver for physicians who treat patients on Medicaid and/or Medicare, and the 
petitioner has submitted no evidence to show that his work has resulted in nationally significant savings 
in Medicaid or Medicare costs. The assertion that other doctors would make poorer or later diagnoses, 
resulting in greater costs, amounts to unsupported speculation. 
Regarding the claim that "the Department of Labor does not allow for a combination of occupations 
when filing a labor certification," the Department of Labor regulation at 20 C.F.R. § 656.17(h)(3) 
states: 
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 shows that "a combination of occupations" is acceptable under certain 
specified conditions. Furthermore, the record indicates that a combination of clinical, teaching and 
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research duties is customary for medical school faculty members. The petitioner has not shown that 
the Department of Labor will not approve labor certification applications for medical school faculty 
positions. 
The initial filing of the petition included two similar letters, signed by Dr. 
and chairman of Department of Orthopedic Surgery, and by Dr. 1s 
professor and chairman of the Department of Orthopaedic Surgery at 
where the petitioner trained as a resident from 2007 to 2012. The letters contain 
duplicative wording and phrasing. The submission of such similar letters, from purportedly 
independent sources, casts doubt on the actual authorship and origin of the letters, and thereby 
diminishes their weight as independent evidence of the petitioner's ·reputation and the significance of 
his contributions. 
A section of the record bears the heading "Honors , A wards & Distinctions." All of the materials 
reproduced in this section are student awards such as Dean's List certificates, scholarships, and 
memberships in academic honor societies , with the exception of an "Editor's Choice Award" from 
the which appears to be unrelated 'to the petitioner's medical career. 
Under the heading "Significant Original Contributions," the petitioner submitted copies of published 
and unpublished papers and materials from presentations. The significance of these materials is not 
self-evident; the petitioner submitted no evidence to show that his work has influenced the field as a 
whole, or had a greater impact than articles and presentations by other qualified professionals in his 
field. 
The petitioner submitted a copy of a "Physician Employment Agreement," effective September 1, 
2013, between the petitioner and , engaging the petitioner "to provide 
full-time medical services as a specialist in the area of orthopaedic surgery." The agreement 
indicates that the petitioner "shall participate in research activities as directed by the Chairman" of 
the Department of Orthopaedics at but his "Primary Competencies" 
do not include research as being among the "main function[s] of [the] position, " listed below: 
• Provides medical services and consultation to patients in a number of clinical 
environments throughout the group practice environment ... 
• Provides direct patient care 
• Facilitates appropriate communication with other specialties and departments on 
clinic al issues 
• Participates in administrative activities as designated and approved by the 
Department chair 
• Supervises and provides teaching services for residents, medical students , and 
other trainees ... 
• Proper! y executes/prepares documentation that pertains to medical billing and 
patient coding 
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The documentation regarding the petitioner 's current employment , therefore , places a minim al 
emphasis on research, indicating that the petitioner's duties focus considerably more on clinical care 
and teaching duties. 
The extent of the petitioner's ongoing research work is material because clinical patient treatment 
does not produce benefits that are national in scope; it directly benefits only the limited number of 
patients whom the petitioner personally treats. Similarly, teaching duties benefit the residents 
receiving the training. Medicine and medical training are nationally important in the aggregate, but 
this does not lend national scope to the duties of individual practitioner s. See NYSDOT, 22 I&N 
Dec. at 217 n.3. 
The director issued a request for evidence on August 27, 2013. The director stated that the 
petitioner ' s initial evidence showed the "potential to be an influence on the field as a whole ," but did 
not demonstrate existing impact at the required level. The director requested "documentary evidence 
to establish . . . a past record of specific prior achievement ," including citation data for the 
petitioner ' s published work. 
In response , the petitioner stated that "the original submission [included] numerous independent 
testimonials from prominent experts. " The petitioner did not elaborate on this point, and the record 
does not support this claim. As noted above, the petitioner's initial submission included two letters , 
both from professors at universities where the petitioner had trained. 
In his statement, the petitioner describes his work at "My patients come mostly from the 
greater Philadelphia region , however many also come from different parts of the nation and world . 
. . . I have been able to bring minimally invasive joint replacement to this region. " The petitioner 
submitted no evidence to show that minimally invasive joint replacement surgery was not performed 
in Philadelphia prior to his arrival. See Matter of Soffici, 22 I&N Dec. at 165. Furthermore, the 
petitioner did not begin working in Philadelphia until several months after he filed the petition in 
June 2013. Therefore , even if his new employment met the requirements for the waiver, these 
circumstances did not exist at the time of filing . An applicant or petitioner must establish that he or 
she is eligible for the requested benefit at the time of filing the benefit request. 8 C.P.R. 
§ 103.2(b)(1). users 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 petitioner submitted letters from two faculty members. Dr. is chairman of 
the Department of Orthopedic Surgery . Dr. specified no title, but his letter is on 
.etterhead. Dr. asserted that the petitioner "has made substantial contributions to the 
Department and Training Program" at for instance he "revitalized the joint replacement 
educational curriculum for didactics and clinical training. " 
Dr. who previously encountered the petitioner at of Medicine , 
stated that recruited the petitioner because "[w]e were interested in [the petitioner 's] 
academic performance, his expertise in total joint arthroplasty especially revisions , and we were also 
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interested in his ability to make contributions to the literature by virtue of his scholarship and his 
interest in basic science research." Both doctors at 
praised the petitioner's latest work in 
general terms. This information shows that the petitioner continues to practice medicine and to train 
residents, and indicates at least the possibility of future involvement in research, but it does not show 
that it is in the national interest for the petitioner, rather than a qualified United States worker, to fill 
his current role at or that the petitioner already qualified for the waiver at the time of filing. 
Some of the writers asserted that there is, or will be, a shortage of qualified professionals in the 
petitioner's specialty. Such shortages are not generally grounds for waiving the job offer 
requirement, because the labor certification process addresses such shortages. See NYSDOT, 22 I&N 
Dec. at 218. Section 203(b )(2)(B)(ii) of the Act provides for a shortage-based waiver for certain 
physicians, but eligibility is not a simple matter of asserting that a shortage exists (or will exist). 
Rather, a foreign physician seeking a shortage-based national interest waiver must meet several 
requirements, spelled out in the USCIS regulations at 8 C.P.R. § 204.12. The petitioner has not 
attempted to meet this requirements. 
The petitioner stated: 
I also believe that my research work has been very practically important to the 
medical community. I was the first to describe the occurrence of extensive pigmented 
villonodular synovitis after total knee replacement. The work was published in a 
prominent journal, and has been cited multiple times since 
publication. Since the submission of my [petition], I have published two other 
articles . . .. I currently have many projects in the pipeline at different stages of 
implementation. 
The petitioner submitted a printout from the search engine, indicating that the article 
described above had been cited three times. There were no citations shown for the etitioner's other 
published work. The petitioner did not identify the citing articles, although _ has that 
function. The petitioner did not show that the three citations are independent and non-duplicating, or 
that three citations is an unusually high number of citations for articles of that kind. There is no 
blanket waiver for researchers; the petitioner must still establish influence on the field as a whole. 
The director denied the petition on December 17, 2013. The director listed the petitioner's evidence 
and noted that the newest letters "indicate [the petitioner's] abilities to perform [his] duties as a 
clinician, and peripherally note [his] research work, [but] they do not suggest that [the petitioner has] 
had a history of achievement with some degree of influence on the field as a whole." The director 
also found that the petitioner had established only minimal citation of his published work. 
On appeal, the petitioner submits a statement, parts of which exactly repeat portions of the 
introductory statement that accompanied the filing of the petition. The appeal statement consists of 
general statements that do not identify any specific error of fact or law in the denial notice, and 
conclusions without supporting premises. For instance, the appellate statement indicates that the 
petitioner "has proven over the course of his career that his original research is both progressive and 
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extraordinary," but identifies no evidence to support this claim. Unsupported claims have no weight 
as evidence. See Matter of Soffici, 22 I&N Dec. at 165. 
The petitioner repeats his initial claim that USCIS should "take into consideration the opinions of 
[the petitioner's] peers that he is regarded as being uniquely skilled as an orthopedic surgeon" as 
well as "his unique roles within major academic teaching hospitals." The writers of the submitted 
letters were all directly involved in the petitioner's medical training, and the petitioner has not shown 
that his roles at teaching hospitals have differed materially from the functions performed by other 
residents and fellows at such institutions. 
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 his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
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, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.