dismissed EB-2 NIW Case: Medicine

identifying data deleted to 
prevent cle~rly unwarr~ted 
invasion of personal pnvacy 
PUBLIC COpy 
DATE: JUL 23 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § IIS3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.S. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.S(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.nscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter is 
now before the AAO on a motion to reopen and a motion to reconsider. The AAO will dismiss the 
motion to reconsider, grant the motion to reopen, and affirm the dismissal of the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § I I 53(b)(2), as an alien of exceptional ability in the sciences and 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 in medical oncology at East Tennessee State 
University (ETSU), Johnson City; his most recent authorized employment is for University of Iowa 
Community Medical Services. 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. The AAO affirmed the director's decision and 
dismissed the petitioner's appeal. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or Service 
policy. A motion to reconsider a decision on an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. § I 03.5(a)( 4). 
The petitioner has not established that the decision was based on an incorrect application of law or 
Service policy, or that the decision was incorrect based on the evidence of record at the time of the 
initial decision. Therefore, the motion does not meet the requirements of a motion to reconsider, and 
the AAO must dismiss the motion. The petitioner has, however, stated new facts and provided 
supporting documentary evidence. The evidence relates to the petitioner's activities after the petition's 
filing date, but because the AAO based its decision, in part, on the petitioner's likely future activities, 
this new evidence is relevant to the proceeding at hand. The AAO will grant the motion to reopen, and 
give due consideration to the new evidence. 
On motion, the petitioner submits a two-page brief from counsel and numerous exhibits, almost all 
of them copies of materials already in the record. Copies of previously submitted documents cannot 
establish new facts, and their resubmission cannot add substantive support to a motion. In the 
present decision, the AAO will limit consideration to the new brief and the three new exhibits 
submitted on motion, to be discussed below. The petitioner filed the Form 1-140 petition on June 
23, 2010. The director denied the petition on August 31, 2010, and the AAO dismissed the 
petitioner's appeal on December 15, 2011. The AAO incorporates its prior decision by reference, 
and will quote or summarize relevant passages as necessary in the present decision. 
Section 203(b) 0 f the Act states, in pertinent part: 
Page 3 
(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. 
(8) Waiver ofJob 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 record readily establishes 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 defme 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, 10ist Cong., 1st Sess., 11 (1989). 
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 USClSj 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 quality 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. 
Matter a/New York State Dept. a/Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered 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. Next, the petitioner must show that the proposed benefit will be national in 
scope. 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. 
Page 4 
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. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The intention behind the term "prospective" is 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. 
The AAO also notes 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 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. 
Counsel, on motion, contends that the AAO erred by finding that the petitioner's work lacks 
national scope, and that the petitioner had not established that a waiver of the job offer requirement 
would be in the national interest. The AAO will first examine the question of national scope. In its 
dismissal decision of December 2011, the AAO stated: 
The [petitioner's] curriculum vitae listed three items under the heading 
"Publications/Research." Two of the items were scholarly articles ... [that each] 
centered on the presentation of one patient's case. The third item indicated that the 
petitioner was "Currently Involved in National Institutes of Health's R-25 Research 
Grant, Cancer Stories Project with Dr. Forrest Lange and associates." 
... [T]he petitioner acknowledged that his current position amounted to "training." 
The petitioner submitted no documentary evidence to show that he would continue to 
engage in research after his training was complete .... 
In the denial notice, the director acknowledged the intrinsic merit of medicine, but 
found that the petitioner had not shown that his intended future work has national 
scope. Rather, the director determined that the petitioner's "impact will be limited to 
the hospital in which he will practice; therefore, the benefit of his skills will be 
limited to a small area." 
... Counsel asserts [on appeal] that the petitioner's "work towards the cure of cancer 
[is] national in scope." Published research is national in scope, but the petitioner's 
minimal research record appears to be tied to his ongoing training at ETSU. The 
record is devoid of evidence that the petitioner will be a researcher, rather than a 
clinical oncologist, after he completes his training. Furthermore, the only research 
that the petitioner appears to have been conducting as of the petition's filing date is 
the oft-touted NIH project which, according to witnesses, concerns "communication 
with cancer patients" rather than "the cure of cancer." 
Page 5 
On motion, counsel states that "it was not reasonable for the A.A.O. to conclude that cancer 
research work in one location could not have national implications or benefits." The AAO, 
however, did not conclude that "cancer research work" lacked national scope. Rather, the AAO 
noted the petitioner's own assertion that he was still a "trainee," and that there was no evidence that 
the petitioner would continue to conduct research after he completed his training. Treating patients 
in a clinical setting does not inherently constitute "research." Thus, counsel faults the AAO for an 
error it did not make. 
Counsel cites a "recently published article ... published in a national, peer-reviewed journal" that 
"clearly demonstrates [the petitioner's] continued research work even beyond the completion of his 
training program." The "article" in question, submitted on motion, is a "Letter to the Editor" that 
appeared in the online edition of Bone Marrow Transplantation on November 14, 2011. A printout 
of a page from the journal's web site, http://www.nature.com/bmt/about.html. provides general 
information about the journal but does not say whether a "letter to the editor" is a peer-reviewed 
article that reports new, original research . 
•••• is one of four individuals identified as an author of the letter; the other three authors are 
previously unmentioned in the record. All of the letter's authors claim affiliation with Vanderbilt 
University Medical Center and Veterans Affairs Medical Center, both in Nashville, Tennessee. 
According to change of address notices that the petitioner himself filed with USCIS, the petitioner 
left Tennessee in June 2011 and has since resided in Ottumwa, Iowa; his only current authorized 
employer, according to USCIS records, is in Iowa City, Iowa. Both of those Iowa cities are more 
than 500 miles northwest of Nashville. The petitioner has submitted nothing to show that he is the 
_ identified in the Bone Marrow Transplantation letter. 
Even if the petitioner is the same ; the letter refers to "[0 ]ur recently published study," 
identified at endnote number 4. The article so identified, however, does not include ' 
among its authors; its coauthors included only two of the four signers of the "letter to the editor," 
indicating that the "our" was institutional rather than personal. Thus, the letter's reference to "[a]n 
ongoing study at our institution" does not imply that ' , is participating in that study as a 
researcher. The letter does not report new original research, but rather comments on prior research 
by authors other than _at an institution where the petitioner has never before claimed 
employment. The letter is not evidence that the petitioner has engaged in research since he left 
Tennessee for Iowa in mid-2011, 
The petitioner's motion also includes a copy of a letter from Dr. of the 
Commission on Cancer (CoC). The letter is addressed to the petitioner in Ottumwa, Iowa, and 
dated July 29, 2011, thus placing the petitioner in Iowa rather than Tennessee in the latter half of 
2011. The letter reads, in part: 
I would like to congratulate you on your recent appointment as Cancer Liaison 
Physician (CLP) at Regional Cares - Ottumwa Regional Health Center. Effective 
July I, 2011, the tenure of this appointment is for three years .. , . 
, ' . . 
Page 6 
You are part of an exclusive network of 1,500 physician volunteers charged with the 
task of providing leadership and improving the quality of cancer care in cancer 
programs across the country. Effective January 2012 the role of the CLP will be 
enhanced according to a new standard (4.3). CLPs will be responsible for activities 
in four areas: (1) monitoring and interpreting your program's performance using 
NCDB data and using the information to evaluate and improve the quality of care 
your facility provides, (2) reporting on CoC activities, initiatives and priorities to the 
cancer committee, (3) serving as liaison for the cancer program with the American 
Cancer Society, and (4) being present during the CoC survey and meeting with the 
surveyor. 
Dr. _letter does not indicate that a CLP's duties include active participation in cancer 
research. Rather, the letter indicates that the CLP is responsible for making sure that the CLP's own 
employing institution complies with CoC goals and practices. As such, the letter does not show that 
a CLP's duties are national in scope. 
For the reasons discussed above, the petitioner's new evidence does not show that his post-training 
work has national scope. The AAO affIrms its prior finding to that effect. 
Concerning the third prong of the NYSDOT national interest test, the AAO previously stated that the 
director "found that the petitioner failed to distinguish himself from other physicians to an extent 
that would justifY an exemption from the statutory job offer requirement." The AAO acknowledged 
the petitioner's submission of several witness letters, but noted: "All of the witnesses are on the 
faculty of a single university medical school. Their statements, therefore, are not first-hand 
evidence that the petitioner's work has attracted any significant notice outside ofETSU." The AAO 
observed that one of the petitioner's witnesses "has done little more than list the items on the 
beneficiary's curriculum vitae and declare that they establish the petitioner's eligibility for the 
waiver." The AAO further acknowledged the petitioner's submission of various exhibits and his 
participation in various programs, but found that none of these materials intrinsically demonstrated 
the petitioner's eligibility for the national interest waiver, and that a witness's claim that the 
petitioner's "publications are read by physicians throughout the United States" amounted to 
"unsupported speculation." The AAO concluded: "The record overwhelmingly indicates that the 
petitioner's body of work, as a whole, has attracted little notice outside ofETSU (where all of the 
petitioner's witnesses serve on the faculty)." 
Counsel states: "Unhappily, the A.A.O. has done nothing more than apply the same minimal 
boilerplate analysis exhibited by the Petition's initial denial." Counsel contends that the AAO 
should have given more weight to "[c]arefully drafted witness testimony," instead of faulting the 
petitioner for the lack of "discrete documentary evidence in support of' that testimony. The AAO 
has already explained its position on the witness letters in the record, devoting several pages of its 
prior decision to the subject. The AAO need not revisit its findings simply because counsel deems 
the AAO's analysis to be "minimal" or "boilerplate," and counsel offers no legal or logical premises 
to support the contention that the AAO and uscrs must unquestioningly accept unsubstantiated 
witness claims as fact. The AAO previously cited binding precedent decisions in this matter, and 
will add here the Board ofImmigration Appeals' observation that expert opinion testimony does not 
Page 7 
purport to be evidence as to "fact." See Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008). An 
uncorroborated claim does not and cannot take on the weight of documented fact simply because 
that claim comes from a third party rather than directly from the petitioner. Otherwise, the 
petitioner could evade a substantial part of his burden of proof simply by asking witnesses to 
include various claims in their letters on his behalf 
The AAO, in its dismissal notice, acknowledged that the director mistakenly referred to the 
petitioner as a gastroenterologist, but concluded that the reference was a harmless error that did not 
affect the outcome of the decision. The word "gastroenterologist" appears only once in the 
decision, on page 4, where the director stated: "the record contains no evidence that his work has 
made a significant contribution to the world of doctors serving as gastroenterologist."! In contrast, 
the decision contains multiple references to the petitioner's true specialty, oncology. The second 
sentence in the body of the decision correctly referred to the petitioner as a "Physician in the field of 
Medical Oncology." 
On motion, counsel asserts: "It ... is hard to reconcile how the erroneous description of [the 
petitioner 1 as a gastroenterologist could be considered a 'harmless error, '" because gastroenterology 
is not closely related to cancer research. As the AAO previously noted, the director's decision 
contains numerous specific and accurate references to the evidence of record, and quotations from 
witness letters. Therefore, the misidentification of the petitioner as a gastroenterologist does not 
prove or even suggest that the director reviewed the wrong record of proceeding. Reading the 
decision as a whole (instead of taking one sentence out of context), it is abundantly clear that the 
director knew the petitioner was an oncologist at ETSU. 
The error is harmless because it "clearly had no bearing on the procedure used or the substance of 
the decision reached." Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 
1059, 1071 (9th Cir.2004». One cannot read the director's decision and conclude that the director 
would have approved the petition, but for the mistaken belief that the petitioner is a 
gastroenterologist. At no time did the director conclude that the petition had to be denied because 
gastroenterologists do not conduct cancer research. An isolated misidentification of the petitioner's 
medical specialty, surrounded by more accurate information, did not prejudice or change the 
outcome of the decision, and the AAO affirms its prior finding that the director's accidental use of 
the word "gastroenterologist" amounts to harmless error rather than a material error of fact that led 
to the erroneous denial of a petition that the director should have approved. 
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 motion to reconsider is dismissed. The motion to reopen is granted. The AAO's 
previous decision of December 15, 2011 is affirmed. The petition remains denied and 
the appeal remains dismissed. 
I Arguably, this passage is not a factual error at all, because counsel and the director are in agreement that the petitioner 
has made no significant contributions as a gastroenterologist.