dismissed EB-2 NIW Case: Medicine

(b)(6)
DATE: JAN 2 9 2013 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
.u:s. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 20QO 
Washington, DC 20529-2090 
U.S. Citizenship 
··and Immigration 
'· Services 
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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided yqur 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 ~ecision , 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 l-2908, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirement~ for filing such a motion cari be found at 8 CF.R. § 103,5. Do not tile any motion 
directly with the AAO. Please be aware that -8 c.i:<R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen: 
Thank you, 
~~ · 
5Ron Rosenb~ . · 
· Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 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. At the time she filed the petition, the petitioner was a 
fellow in gastroenterology and hepatology 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 a statement in which counsel states that the director did not give 
sufficient consideration to (1) the petitioner's awards or (2) her gender and combination of skills. 
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 wl)ose 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 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 
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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, 101 st Con g., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 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, altpough 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 (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Coinrn'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 must establish that the alien will serve the natiQilal interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitione~ 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 "prpspective" 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 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 1-140 petition on September 3, 2010. In an introductory statement, 
counsel stated that the petitioner "possesses expertise as both a Gastroenterologist and as an 
Obstetrician/Gynecologist [OBGYN]. Less than 1% of all Gastroenterologists are able to treat and 
manage GI [gastrointestinal] problems encountered in pregnancies." Counsel cited no evidence to 
support this claim. The unsupported assertions of counsel do not constitute evidence. See Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano,.19 I&N Dec. 1, 3 n.2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Witness letters (from 
physicians who claim no expertise in the petitioner's specialty) included an "estimate that less than 
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0.5% of GI specialists have the knowledge and expertise to treat patients suffering from Gl problems 
and pregnancies" (sic), but the record contains no solid evidence to establish the accuracy of this 
admitted "estimate." 
Counsel stated: "We have provided documentation that shows that this nation is facing a significant 
shortage in Gastroenterologists, especially those who are able to treat women." Counsel, here, 
appears to equate the ability "to treat and manage GI problems encountered in pregnancies " with the 
ability "to treat women," an equation that disregards digestive problems unrelated to pregnancy. 
I • 
More important, Congress addressed the issue of physician shortages with the passage of section 
203(b )(2)(B)(ii) of the Act, which spells tout a procedure by which a physician in a shortage area can 
qualify for the waiver. The implementing regulations for this procedure appear at 8 C.F.R. § 245.12. 
The petitioner did not submit the evidence that those regulations require, relying instead on- the 
general assertion of a shortage in her specialty. Outside of the statutorily specified provisions 
identified above, a shortage of workers is grounds for obtaining, rather than waiving, a labor 
certification. See NYSDOT, 22 I&N Dec. at 218. 
Counsel asserted that the benefit arising from the petitioner's work is national in scope because: 
Her role as a GI specialist extends beyond merely attending to a small community of 
patients in research and clinical settings. The expansive scope of [the petitioner's] 
salient contributions encompasses not only her immediate field of gastroenterology, but 
also the medical community at large both nationally and internationally. Her original 
research has already had a direct impact on the field and has gained her nationwide 
· recognition. Through her many publications and presentations, '[the petitioner] is not 
only reaching a large and distinguished audience, but she is in fact reaching countless 
leading specialists in the field throughout the country. She is thus having a profound 
and direct impact on her field. 
Counsel stated that the petitioner has published her research in journals and presented it at 
conferences. Counsel correctly . asserted that this dissemination of {esearch work provides benefits 
that are national in scope. The petitioner, however, will prospectively benefit the United States as a 
researcher only if she continues to perform research. Research conducted in the context of graduate 
study or training is, by nature; time-limited and not necessarily indicative of the student's or 
trainee's future career trajectory. 
In terms of the petitioner's clinical practice of medicine, counsel's claims· are considerably less 
persuasive: 
(The petitioner] 
frequently diagnoses and treats patients from different parts of the 
country on referral. She has worked at tertiary facilities that are constantly referred 
patients from various regions throughout the country. Because she is able to perform 
such advanced procedures that only a very small percentage of his [sic] peers are able 
to perform, she is called on to treat patients from around the country. In addition, she 
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is constantly teaching the use of the skills to both junior and even senior peers, as 
such creating 
a ripple effect that is making the perfomiance· of these procedures more 
widespread nationally. 
The above claims lack evidentiary support, as well as details that would permit verification. As for 
the claimed "ripple effect" of teaching "advanced procedures," counsel did not claim that the 
petitioner invented or significantly improved these procedures. An alien's job-related training in a 
given procedure, whatever its importance, is not an achievement or contribution comparable to the 
innovation of that new method. See Matter of New York State Dept. ofTranspprtation, 22 I&N Dec. 
221 n.7. · The basic claim appears to be that, having learned advanced procedures herself, the 
petitioner can now teach them to others. Counsel did not explain how this distinguishes the 
petitioner from other medical students who, like the petitioner, take on some teaching duties even 
while completing their own professional training. Also, counsel did not explain why ultimate credit 
for the "ripple effect" should go to the petitioner rather than to her teachers, or their teachers before 
them. 
Counsel addressed the labor certification issue: 
In the labor certification process, the employer is required to list the "actual minimum 
requirements for the job opportunity." [20 C.F .R. Sec. 656.21 (b)( 5)]. 1 In effect, this 
means that the employer must show that it ''has not hired workers with less training 
or experience for jobs similar to ... the job opportunity." Such considerations .are 
irrelevant within' the factual considerations of the instant case, and are outweighed by 
the rare and valuable skills that [the petitioner] brings' to the United States .... 
\ 
Clearly, [the petitioner], who has been hired to serve in leading roles at some of 
the nation's top medical institutions, was not selected for these positions because 
sh.e possesses minimal or normal requirements. She . was selected after 
nationwide searches in competition with extremely highly qualified peers 
because she is regarded as superior as a physician and as a researcher and 
because she is able to achieve results that are far beyond the norm. 
(Counsel's emphasis.) Counsel did not claim to have been privy to the employee selection process 
at the institutions where the petitioner has worked in the United States 
Once again, the unsupported assertions of eounsel do not .constitute evidence. Therefore, 
counsel must establish a source for the above claims regarding how the petitioner came to work for 
her employer(s) in the United States. Certainly, a given employer would tend to select the best­
qualified applicant for a given positiqn, but this general axiom does ,not warrant the conclusion that 
the petitioner "was selected after nationwide searches in competition with extremely highly qualified 
peers because she is regarded as superior as a physician and as a researcher and because he is able to 
achieve results that are far beyond the norm." Furthermore, the petitioner submitted no persuasive 
1 Counsel's citation and brackets. 
.... 
(b)(6)
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evidence that the petitioner worked in "leading roles" at 
as fellowships and residencies. 
rather than in training positions such 
The petitioner submitted a substantial quantity of documentation regarding her work at but 
did not show that these materials amount to more than the standard work product expected from a 
physician at those institutions. It is by no means a settled or undisputed fact that the petitioner has had 
"leading roles" at "top medical institutions," or that those institutions hired her on the basis of her 
reputation as a superior physician and/or researcher. The positions the petitioner has documented have 
all been residencies, fellowships or other temporary training assignments, indicating that her employer 
considered her professional training to be incomplete. Furthermore, there exists no blanket waiver 
based on the reputation of a given employer. Whatever an institution's standing in a particular field, an 
alien's employment there is not prima facie evidence of eligibility for the waiver. One's impact and 
influence on the field, rather than where that impact originates, is the chief consideration. 
Counsel stated that a job requiring a combination of duties is not amenable to labor certification, 
because "the Department of Labor stipulates that the employer describe its job opportunity without 
'unduly restrictive' requirements [22 C.F.R. sec. 656.21(b)(2)]." The cited regulation actually 
appears in chapter 20, not 22, of the Code of Federal Regulations. The regulation at 20 C.F.R. 
§ 656.21(b )(2)(ii) contains no flat prohibition relating to a combination of duties. Rather, it reads: 
If the job opportunity involves a combination of duties, for example engineer-pilot, 
the employer must document that it has normally employed persons for that 
combination of duties and/or workers customarily perform the combination of duties 
in the area of intended employment, and or the combination job opportunity is based 
on a business necessity. 
The above regulation clearly allows, under certain conditions, labor certification for a position that 
"involves a combination of duties." Counsel cited no BALCA decision or other authoritative source 
to show that the Department of Labor has categorically disallowed labor certification for positions 
that combine the duties of a physician and those of a researcher. Counsel simply claimed that, 
because the petitioner "is directly responsible for saving lives,." her "skills cannot be measured in the 
. L 
context of business necessity." . · · 
Counsel stated that the petitioner is "the recipient of numerous awards," but identified only one such 
award. The record contains a photograph of an award from 
inscribed with the petitioner's name and the phrase 
_ _________ -- ~- _ ~ _ Residency is a stage of medical training, and therefore this award serves 
only to distinguish the petitioner from other trainees at one teaching hospital. Such accolades speak 
well of the petitioner's achievements . as a medical student, but also reinforce the point that the 
petitioner remains a student- albeit one at an advanced stage of training- which, in turn, casts doubt 
on the claim that the petitioner has already reached the top of her field as counsel has claimed. 
The AAO notes .that, under the USCIS regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F), "[e]vidence of 
recognition for achievements and significant contributions to the industry or field by peers, 
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governmental entities, or · professional or business organizations" can form part (but not all) of a 
successful claim of exceptional ability. Awards would constitute a form of recognition contemplated 
by the regulation . . Because exceptional ability is not automatic grounds for the national interest 
waiver, awards that only partially support a 'claim of exceptional ability cannot, by themselves, 
provide strong support for a waiver claim 
without persuasive evidence of the awards ' significance . 
The petitioner submitted several witness letters. Like counsel's introductory statement, these letters 
offer conclusions that are highly favorable toward the petitioner, while offering little empirical 
support for those conclusions. 
stated that the petitioner's ''unmatched clinical skills and her additional 
e~pertise in obstetrics and gynecology, allow her to treat patients that many gastroenterologists 
cannot." Citing, as well, the petitioner's "ability to provide the field with influential research," 
concluded that the petitioner ''has achieved an estimable reputation" and that "[o]nly a 
physician-scientist at the top of her field can boast so many stellar and unique accomplishments." 
stated that the petftioner "has worked on a research project that is sure to save America millions in 
healthcare costs" by showing "that the anti-inflammatory and acid-modulating effects of aspirin can 
provide protection against clostridium difficile associated diarrhea." and several other 
witnesses, observed that this project had been accepted for presentation at an October 2010 
professional gathering which had not yet occurred as of the petition's September 2010 filing date. 
Therefore, at the time of filing, it was too early to tell how influential the research project would 
prove to be. An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the tiine of filing the benefit request. 8 C.F.R. § 103.2(b)(l). 
stated that the 
petitioner's "prior experience in a surgical specialty . . . gives her an edge over other 
gastroenterologists," and that she "has 'further distinguished herself from other physician-scientists 
by being a master clinician." described a case in which the petitioner's timely diagnosis 
likely saved a patient's life, and stated that the petitioner contributed footage to "one of the . 
largest archives of educational endoscopic videos in gastroenterology." 
While the above witnesses from praised the petitioner's research, they otTered no documented 
example of an existing, demonstrably influential research contribution by the petitioner (as opposed 
to speculation about the impact of ongoing or unpublished research) . . 
The remaining four letters are· from witnesses outside of The letters from 
and from 
' J 
~ . are virtually identical. Both letters, for 
example, contain the following passages: 
I would estimate that less than 0.5% of GI specialists have the knowledge and 
expertise to treat patients suffering from GI problems and pregnancies .... 
(b)(6)
Page 8. 
[The petitioner] has demonstrated extraordinary skill in her clinical work, 
successfully performing procedures that very few m her area even attempt to 
undertake .... 
[The petitioner] has continually been recognized for her wide expertise in medicine 
through her numerous appointments and leadership positions. She is truly one of the 
leading GI specialists in the country today. 
Neither of the physicians who signed versions of this letter claimed expertise in the petitioner's 
primary specialty of gastroenterology. is the director of the 
, whereas 
- ... - -
stated: "I can confirm that only about a dozen gastroenterologists that I am aware of ... have 
reached a similar level of expertise as" the p'etitioner. specializes in "Heart 
failure/Transplant cardiology" at the 
_ _ is a professor of obstetrics and 
gynecology, but he said little about the petitioner's achievements in that specialty. Instead, 
. asserted that the petitioner's "rare expertise has garnered her acclaim .among Gl specialists." 
t is one of several witnesses who stated that the petitioner has held "leadership positions," 
but who did not identify any of those positions. · · 
All of the outside witnesses work in specialties other than gastroenterology; none of them 
established their standing to compare the petitioner to other gastroenterologists. Furthermore, the 
submission of basically the same letter from two supposedly independent witnesses raises serious 
qu~stions about the actual origin and authorship of all of the letters. The use of common language 
implies common authorship. Cf Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 
148 (2d Cir. 2006) (upholding an immigration judge's adverse credi~ility determination in asylum 
proceedings based in part on the similarity of some of the affidavits); Mei Chai Ye v. U.S. Dept. of 
Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably 
infer that when an asylum applicant submits strikingly similar affidavits, the applicant is the 
common source). 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, 
absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. ld. at 
582, 591-92. 
The petitioner's evidentiary submission included a section labeled "Publications," but it contains 
only one published piece. The petitioner was one of eight authors of 
a piece consisting of twocphotographs and eleven 
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Page 9 
sentences in The petitioner submitted background materials about that 
journal but no other,. indicating that the article was the petitioner's only published work to date. 
On February 21, 2012, the director issued a request for evidence (RFE), instructing the petitioner to 
submit evidence to meet the guidelines set forth in NYSDOT. With respect to the petitioner's various 
achievements, the director stated that it would not suffice simply to document their existence. 
Instead, the director 
called for additional documentation . For instance :. "Any awards for work in the 
field must be accompanied by a statement from the institution that granted the award, commenting 
on the number of awards given, the frequency of the award, the criteria for granting the award, and 
the number of individuals eligible to compete for the award." 
In response , the petitioner submitted another copy of the previously submitted piece from 
as well as copies of several conferen~e abstracts that appeared in 
supplements to The abstracts, like the 
previously submitted piece, recounted case studies of diagnoses and treatment of individual patients; 
they did not report original research. 
The petitioner submitted several more witness letters. provided a second letter stating 
that the petitioner's "research work on aspirin and its protective effects on C' difficile associated 
diarrhea (CDAD) ... has the potential to save the health care system billions of dollars ." The letter 
also indicated that the petitioner's "impressive research work on the effects of obesity on common 
GI procedures and on bowel prep for colonoscopy, has won two nat~o'nal level awards." The letter 
did not identify . the awards or indicate when the petitioner received them, but did indicate that the 
petitioner presented the research in 2012, well after the petition's filing date. USCIS 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'! Comm ' r 1971). 
·. 
The remaining letters are from witnesses outside of A.s before, most of the witnesses are not 
gastroenterologists. 
signed a letter that contains language very similar, at times identical, 
to that in second letter. Both letters, for example, contain the following passage: "Her 
research gives insight on obesity and how it affects the gastroenterologists practice. It also gives an 
understanding of how to improve quality of colonoscopy in obese · patients. This is the kind of 
research that will help doctors on a daily basis and will directly improve patient care. " In both 
letters, the word "gastroenterologists" is missing the apostrophe required by the possessive sense of 
the word. letter includes the phrase: "I have applied her impressive original 
research to my own practice of medicine," but no elaboration on this point. is an 
oncologist (cancer specialist), specializing "in translational hematology." The letter did not identify 
any cancer-related research by the petitioner, focusing instead on an infectious disease unrelated to 
cancer. Therefore, the letter does not explain how the petitioner, as a gastroenterologist, has 
influenced the medical practice of a cancer specialist. Other witnesses mentioned colorectal cancer, 
but did not, and did not claim to specialize or work with that particular 
type of cancer. 
(b)(6)
Page 10 
is also an oncologist, but one with 
a more discernible relation to the petitioner's work. 5pecialty involves "Gastrointestinal 
Oncology," the practice of which would include colonoscopy ·as a diagnostic tool. 
discussed two of the petitioner's 2011 conference papers and concluded that they are "very 
important in shedding new light on the risks benefits and costs involved in endoscopic procedures in 
obese patients." It is significant that the petitioner's original submission in 2010 did not mention 
obese patients at all. This shift in emphasis marks a significant change from the initial filing. 
The only actual gastroenterologist outside of to provide a· Jetter is 
stated: 
I am well aware of [the petitioner's] reputation in our field as an outstanding 
Gastroenterologist, and certainly consider her to be at the to of the field. I am 
particularly impressed with her paper in which made 
me aware ofFascioliasis - a rare parasite that can cause obstruction of the bile ducts. 
and inflammation of the pancreas. Since the management of Fascioliasis is diffhent 
to the usual causes of pancreatitis and biliary sepsis, it is important for 
gastroenterologists to be aware of this unusual presentation of the disease and keep it 
as a differential in patient emigrating.from endemic countries who present with· acute 
pancreatitis . · 
It is important to note that the petitioner did not discover the disease, create a new method to 
diagnose or treat it, or introduce a previously unknown or underreported ailment to the medical 
literature. Rather, she was one of several authors of a paper that described one case of the disease. 
An editorial commentary published along with the petitioner's paper discussed symptoms and 
diagnosis, and noted that literature discussing the Fasciola hepatica parasite dates back to I 379. 
works in the "Sections of Internal Medicine and Transplantation." also 
discussed the fascioliasis diagnosis, and :stated 'that the petitioner's "paper is regarded as very 
important in shedding new light on an important clinical issue and in so doing, has directly led to 
improvements in patient care." Like other witnesses, failed to elaborate by, for exaniple, 
identifying any specific "improvements in patient care." 
The petitioner separated two of · the letters from the others, under the heading "Evidence ·of 
Leading/Critical Roles." repeated the observation that the petitioner 
has training in gastroenterology as well as in obstetrics imd gynecology, and stated: "because of this 
combination of expertise she was selected to give a presentation on to 
a team of experts at the 
stated that the petitioner "currently runs a 
hepatology clinic once a week." Both witness letters focused on the petitioner's work after the 
petition's filing date, with passing mentions of earlier activities .. 
(b)(6)
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Page 11 
The petitioner documented three citations of her One of the 
citing articles also cited an article from 2005, reporting a case of pancreatitis caused by F. hepatica 
infestation. This earlier paper proves that the petitioner and her colle_agues did not introduce the 
diagnosis into the medical literature. Another citing article made the same point as the commentary 
that accompanied the petitioner's paper: pancreatitis is a rare symptom of fascioliasis, which would 
seem to constrain, rather than broaden, the influence and impact of the petitioner's paper,· even if 
others had not already reported the existence of that symptom. 
The petitioner submitted additional evidence of poster presentations and electronic slide 
presentations, but 'no objective evidence to show that these m~terials represent significant . 
achievements rather than routine activities expected of medical students at an advanced stage of 
training. Documenting their existence is not the same as documenting .their significance. 
In response to the director's request ·for first-hand evidence and information about awards, the 
petitioner indicated that two poster presentations at a The 
petitioner submitted an anonymous cover sheet, presumably written by the petitioner or by counsel, 
that included quotations about the two awards. The cover sheet identified no sources for the quoted 
passages. Therefore, the petitioner did not follow the instruction · to submit "a statement from the 
institution that granted the award" to provide information about that award. Furthermore, both of the 
claimed poster awards date from after the petition's filing date. The petitioner's initial submission 
had documented an award from but the petitioner submitted nothing from to establish 
the significance of the award despite specific instructions to do so. 
The director denied the petition on June 20, 2012. The director noted that the petitioner's response 
to the request for evidence included "additional support letters" as well as "evidence of additional 
poster presentations ... and copies of abstracts." The director found that "the requested waiver 
appears to primarily rest on the issue of [the petitioner's] abilities as a Physician." The director 
concluded that the petitioner had submitted "insufficient evidence to demonstrate that [the 
petitioner's] proposed employment would specifically benefit the national interest of the United 
States to a substantially greater degree than a similarly qualifiedU .S. worker." 
On appeal, counsel states: "The-record shows that [the petitioner] has conducted important research, 
and we believe the officer has not taken into account the objective evidence provided which shows 
the field's recognition of the influence of this research." Counsel does not identify this "objective 
evidence." Counsel protests that the director's decision contained "no mention of the 
As noted previ<?usly, the awards named above date from 2011 and therefore cannot 
establish eligibility as of the 2010 filing date. - _Furthermore, the director provided very specific 
instructions for the petitioner to establish the significance of any awards she had received. The 
petitioner responded with a photograph of herself holding a partially legible award ce_rtificate. 
Counsel states that the petitioner's "unique combination of expertise, coupled with her gender, 
cannot be properly articulated in the labor certification process .... [S]he is one of less than a 
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'• 
Page 12 
handful of female gastroenterologists in the country, with expertise in obstetrics and gynecology," 
Counsel asserts that "[tlhispoint was a central point to the Request for Evidence response, but was 
not addressed by the reviewing officer." The petitioner had indeed submitted materials to show that 
most gastroenterologists are 
male, but that many female patients prefer female gastroenterologists. 
The immigration of one female gastroenterologist would not significantly address this imbalance or 
benefit the national interest.(as opposed to accommodate the personal preference of a small number 
of patients). The issue of a patient's "comfort level" (counsel's phrase) is a real one for a given 
patient, but the petitioner's ability to~put her own female patients at ease does not present a benefit 
that is national in scope. 
Likewise, the petitioner's trammg in obstetrics and gynecology may be unusual among 
gastroenterologists, but counsel has not explained how this is a national interest issue. The petitioner 
has not demonstrated that the scarcity of a given combination of_likills is directly proportional to the 
national-scale benefit arising from that combination. 
The unsupported assertion· that a female gastroenterologist with obstetrical/gynecological tratmng 
serves the national interest to a substantially greater degree than a male gastroenterologist with no 
such training is not a strong basis for approving the national interest waiver. Therefore, the 
director's failure to discuss this element of the petitioner's claim is not an adjudicative error that 
warrants reversal of the denial decision. 
As is dear from a plain reading of 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. 
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 appeal is dismissed.