dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-K-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 24, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician specializing in surgical and non-surgical treatment of the spine, seeks 
second preference immigrant classification as a member of the professions holding an advanced 
degree, as well as a national interest waiver of the job offer requirement attached to this EB-2 
classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b)(2). After the petitioner has established eligibility for EB-2 classification, U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, grant a national interest waiver if 
the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial 
merit and national importance; (2) that the foreign national is well positioned to advance the 
proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the 
requirements of a job offer and thus of a labor certification. Matter o(Dhanasar, 26 l&N Dec. 884 
(AAO 2016). 
The Director of the Texas Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that he had not established that a waiver of the required job offer. 
and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits additional documentation and argues that he is eligible for a 
national interest waiver due to his work aimed at "'practicing and developing new techniques that are 
alternatives to surgery." In August 2017, we issued a request for evidence (RFE) asking the 
Petitioner to provide evidence satisfying the three-part framework set forth in Dhanasar. In 
response, the Petitioner provides further evidence and contends that he is eligible for a national 
interest waiver under the Dhanasar framework. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
Matter of 1-K-C-
requires that the individual's services be sought by a U.S. employer. a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members ofthe 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 ofjob offer-
(i) National interest waiver. ... [T]he 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. 
While neither the statute nor the pertinent regulations define the term '·national interest" we recently 
set forth a new framework for adjudicating national interest waiver petitions. S'ee Dhanasar. 26 I&N 
Dec. 884. 1 Dhanasar states that after EB-2 eligibility has been established. USCIS may. as a matter 
of discretion, grant a national interest waiver when the below prongs are met. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of 
areas such as business, entrepreneurialism, science, technology. culture. health. or education. In 
determining whether the proposed endeavor has national importance. we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor. we consider factors 
including, but not limited to: the individual's education, skills, knowledge and record of success in 
related or similar efforts; a model or plan for future activities; any progress towards achieving the 
1 
In announcing this new framework, we vacated our prior precedent decision. Matter of' New rork State Department ol 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm 'r 1998). 
2 
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Matter (~f 1-K-C-
proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities 
or individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In 
performing this analysis, USC IS may evaluate factors such as: whether. in light of the nature of the 
foreign national's qualifications or the proposed endeavor, it would be impractical either for the 
foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether. 
even assuming that other qualified U.S. workers are available. the United States would still benefit 
from the foreign national's contributions; and whether the national interest in the foreign nationars 
contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, 
the factor(s) considered must, taken together, indicate that on balance. it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certitication. 2 
II. ANALYSIS 
The Director found that the Petitoner qualities as a member of the professions holding an advanced 
degree.3 The sole issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. The 
Petitioner indicates that he opened his own medical clinic in Korea in 2002. At the time of tiling, he 
was serving as the clinic's chief executive officer and director. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner seeks to provide "surgical and non-surgical treatment for back pain" and states that 
his plans include "setting up a hospital in the U.S.'' He indicates that his work "involves practicing 
and developing new techniques that are alternatives to surgery and thus avoid[ing] many of the 
complications of surgery." For example, the record includes a letter from an 
orthopedist at in Korea, explaining that the Petitioner performs non-surgical 
treatments that "have the advantages of not causing repulsion in the patients and not interfering with 
the daily routines of patients, since usual activities are possible immediately after treatment 
procedure." We find that the Petitioner's proposed work as a medical practitioner and developer of 
surgical and non-surgical spinal treatments has substantial merit. 
To evaluate whether the Petitioner's work satisfies the national importance requirement, we 
requested evidence documenting the "potential prospective 
impact" of his work. In response, the 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner provided certificates from and stating that he received a "M.D." in 
1993 and a ''M.D., M.s'' in 2002. In response to our RFE, he offers an academic credentials evaluation indicating that his 
latter degree is ''the equivalent of a Master of Science degree in Medical Science from an accredited institution of higher 
education in the United States.·· 
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Matter of 1-K-C-
Petitioner contends that his work will be "directed toward improving techniques and processes" for 
back pain to "relieve the burden on the healthcare system, as well as the physical burden being 
suffered by these patients." He further explains: "Proliferation of spinal surgery in the last 10 years 
has been [a] socio-economic burden in Korea as well as in the USA. In this situation. increase in the 
selection of non-surgical treatment can be quite a useful alternative.'' 
In addition, the Petitioner provides letters from orthopedic clinicians and faculty discussing his 
proposed research aimed at developing innovative orthopedic techniques and its potential benefit to 
our nation's healthcare system. For instance, asserts that the Petitioner's work 
offers "brilliant new technologies for the development of U.S. medical technology and well-being of 
the American people." Furthermore, an orthopedist. states that ··[i]f the 
various techniques and experience of [the Petitioner] can be successfully conveyed to doctors in the 
United States, overall healthcare expenses will decrease.·· also contends that the 
Petitioner's innovations will "bring a huge return on economic growth in the United States by 
speeding up the period of recovery back to everyday life and rehabilitation in a revolutionary way." 
We find the evidence sufficient to demonstrate that the Petitioner's proposed endeavor of developing 
novel surgical and non-surgical spinal treatments for back pain is of national importance. As the 
Petitioner has documented both the substantial merit and national importance of his proposed 
research, he meets the first prong of the Dhanasar framework. 
With regard to the Petitioner's care and treatment of patients with back pain. while it has substantial 
merit, the record does not establish that his clinical work would impact the orthopedics field and 
healthcare industry more broadly, as opposed to being limited to the patients he serves. Accordingly. 
without sufficient documentary evidence of its broader impact, the Petitioner's clinical work as an 
orthopedist or physician does not alone meet the "national importance" element of the first prong of the 
Dhanasar framework. Similarly, in Dhanasar, we determined that the petitioner's teaching activities 
did not rise to the level of having national importance because they would not impact his field more 
broadly. !d. at 893. 
Furthermore, the record as it stands does not sufficiently establish that his proposed endeavor of setting 
up a hospital in the United States has national importance under Dhanasar's first prong. In response to 
our RFE seeking further information, the Petitioner has made one general statement regarding the 
potential impact of this proposed endeavor, asserting: ''I will hire medical doctors and nurses in my 
hospital and I believe that this is a contribution to the American economy." While the Petitioner 
contends that his endeavor will have positive economic effects for the nation, the record lacks 
information or evidence about the specific nature of the proposed endeavor such as the location of 
the hospital, its projected staffing levels, the types of medical services to be provided. and the level 
of need for such services. Without additional information and evidence, the Petitioner has not 
established the implications of the proposed hospital and its potential prospective impact. 
4 
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Matter of 1-K-C-
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner's qualifications. The 
Petitioner submitted his academic credentials, published work. Korean medical licenses, 
membership in the media coverage. and appreciation 
awards. He also offered reference letters from colleagues in Korea discussing his experience with 
various spinal treatments. In response to our RFE. the Petitioner provides a personal statement, an 
academic credentials evaluation, two additional reference letters. certificates of income. and a 
passbook deposit account statement. 
The Petitioner maintains that he "is well qualified for his work based on his education and 
experience." He further contends that his past work has "had a significant impact" in his field, that 
he "is financially independent due to the significance of his abilities,'' and that he "is highly able to 
advance his proposed endeavor of setting up a hospital in the United States... As noted above. the 
Petitioner has not demonstrated that his proposed endeavor of setting up a hospital or his clinical 
activities as a physician and orthopedist meet the "national importance'' element of the Dhanasar 
framework's first prong. Accordingly, we will limit our analysis under this prong to his proposed 
endeavor of researching and developing improved techniques and processes for surgical and non­
surgical treatments of the spine. 
In letters supporting the petition, orthopedic clinicians and faculty discussed the Petitioner's 
experience with spinal treatments. For example, states that he learned a 
"nonsurgical treatment (prolotherapy)" from [the Petitioner]" and that he is ''applying it as one of 
most important treatment modality for treat [sic] patients. "4 In addition. asserts that the 
Petitioner's "postoperative rehabilitation treatment methods are far beyond the level of ordinary 
doctors and even textbooks or reference books." Furthermore, an orthopedist 
and adjunct professor at indicates that much of his "knowledge related 
to spinal treatment was learned from [the Petitioner]" including prolotherapy. platelet-rich plasma 
therapy, and carboxytherapy. 5 These letters, however. do not state that the Petitioner has invented or 
pioneered the techniques of prolotherapy, platelet-rich plasma therapy. and carboxytherapy. Rather. 
they attest that the Petitioner has experience in performing and teaching those treatment methods. 
They do not offer specific examples of how new therapies he introduced have generated positive 
interest among relevant parties, have been implemented in other orthopedic clinics. or otherwise 
reflect a record of success in his area of research. 
an orthopedist, asserts that the Petitioner "has more clinical expenence than 
anyone in his field and the quality of his research is excellent." In addition. he describes two 
treatments, a non-surgical pain scrambler therapy and a minimally invasive neuroplasty. and 
4 The Petitioner was previously an associate professor at 
instructed during his orthopedic residency. 
5 
The record reflects that the Petitioner was an associate professor at 
February 2012. 
5 
(February 2000 -- November 2002) and 
from March 20 I 0 unti I 
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Matter qf 1-K-C-
contends that the Petitioner's ··outstanding technique and experience .. with these treatments have 
"shown good results." He does not indicate, however. that the Petitioner originated or substantially 
improved the aforementioned therapies. 
In addition, the record includes letters from "a clinical practitioner of surgery 
and hip disease at ' and ·•a surgeon working in the · W c 
note that the third. fourth, and fifth paragraphs of and letters are almost 
identical in content to the fifth, sixth, and seventh paragraphs in letter. While 
these individuals may have offered their support for this petition, it is unclear whether their letters 
reflect independent observations and thus an informed and unbiased opinion of the Petitioner's work. 
Furthermore, letter is unsigned and the Petitioner's response to our RFE includes an 
additional unsigned letter from chairman of the letter states: 
"[The Petitioner] is unique and cannot be matched by any other researcher. Other researchers. 
although educated similarly, will not do an adequate job.'' The two unsigned letters from 
and which do not appear on letterhead, have limited probative value. 6 In evaluating the 
evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). USC IS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Maller (~!'Caron International, 
19 I&N Dec. 791, 795 (Comm 'r 1988). However, USC IS is ultimately responsible for making the 
final determination regarding an individual's eligibility for the benefit sought. !d. 
The record demonstrates that the Petitioner has conducted and published research during his medical 
career. While we recognize that research must add information to the pool of knowledge in some 
way in order to be accepted for publication, funding, or academic credit, not every individual who 
has performed original research will be found to be well positioned to advance his or her proposed 
research. Rather, we examine the factors set forth in Dhanasar to determine whether, for instance. 
the individual's progress towards achieving the goals of the proposed research. record of success in 
similar efforts, or generation of interest among relevant parties supports such a finding. !d. at 890. 
The Petitioner has not shown that his research has been frequently cited by other medical 
professionals or otherwise served as an impetus for progress in the orthopedics field. that it has 
affected clinical practice, or that it has generated substantial positive discourse in the broader 
medical community. Nor does the evidence demonstrate that his work otherwise constitutes a record 
of success or progress in his area of research. 
With respect to the Petitioner's media coverage, membership in the and appreciation 
awards, 
he has not demonstrated that they render him well positioned to advance his proposed research 
endeavor. For example, he did not offer certified English language transcripts of the 
and programs that covered his work, or a full English language 
translation of the article in Any document in a foreign language must be 
accompanied by a full English language translation. 8 C.F.R. § l03.2(b)(3). The translator must 
6 
We also note that letter, while signed, does not include an address. telephone number. or any other contact 
information as a means for verifying the infonnation in his letter. 
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Matter ofl-K-C-
certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. Because the Petitioner did not 
submit complete translations of the media coverage, we cannot meaningfully determine whether this 
material supports his eligibility. For instance, we are unable to ascertain whether the coverage was 
about the Petitioner's development of new orthopedic techniques. Nor does the record include 
information about the aforementioned media outlets to demonstrate the significance of such 
coverage. In addition, with regard to his membership in the Petitioner has not documented the 
reputation of the or its membership requirements. Furthermore, he has not shown the level of 
distinction ofhis appreciation awards. 
In sum, the Petitioner has not demonstrated a record of success or progress in his field, or a degree of 
interest in his work from relevant parties, that rise to the level of rendering him well positioned to 
advance his proposed endeavor of improving surgical and non-surgical techniques and processes for 
treating back pain. Accordingly, he has not established that he satisfies the second prong of the 
Dhanasar framework. 
C. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. Here, the Petitioner claims that he is eligible for a waiver due to accomplishments that 
he contends are greater than those of his peers. However, as the Petitioner has not established that 
he is well positioned to advance his proposed endeavor as required by the second prong of the 
Dhanasar framework, he is not eligible for a national interest waiver and further discussion of the 
balancing factors under the third prong would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical framework, 
we find that he has not established eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter ofl-K-C-, ID# 613815 (AAO Oct. 24, 20 17)