dismissed EB-2 NIW Case: Medicine

PUBLIC COpy 
DATE: DEC 28 201' 
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: NEBRASKA 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
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 the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) ofthe Immigration and Nationality Act 
(the Act), 8 U.S.C. § I I 53(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a resident physician at the 
who ultimately seeks employment as an electrophysiologist. 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 ajob offer would be in the national interest ofthe United States. 
On appeal, the petitioner requests oral argument, stating: 
My case is unique because ofthe complexity ofthe medical training system in the US 
that prevents me from obtaining labor certification. Medicare who is the nation-wide 
employer of residents/fellows will not perform labor-certification. I believe if I 
present orally my circumstances I will be able to convey in full the complexities of 
the medical training system. 
The regulations require the requesting party to explain in writing why oral argument is necessary. 
Furthermore, U.S. Citizenship and Immigration Services (USCIS) has the sole authority to grant or 
deny a request for oral argument and will grant argument only in cases involving unique factors or 
issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § I03.3(b). In this 
instance, the petitioner presented no coherent basis for oral argument. He simply asserts that "the 
complexities of the medical training system" defy written description and therefore he must address 
them orally. The petitioner submits no support for this claim and, as the AAO will show, the 
petitioner has a history, throughout this proceeding, of making unsupported claims. Consequently, 
the AAO denies the request for oral argument. 
Section 203(b) ofthe 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. 
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(B) 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 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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
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 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 "exceptiona1."] 
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 of New York State Dept. of Transportation (NYSD01), 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. N ext, 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. 
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. 
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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 ofthe 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 February 8, 2010. The record indicates that the 
petitioner earned a bachelor's degree in computer engineering and a master's degree in electrical 
engineering, both at the and worked as a software 
design engineer at before attending medical school at. 
In a letter accompanying the initial filing, the petitioner described his work and his claim of 
eligibility for the waiver: 
I am an electrical engineer, physician and biomedical researcher at the 
This petition provides evidence of my extraordinary and extensive contributions in 
the areas of biomedical engineering, information technology, orthopedic oncology 
and most recently in cardiology. Some of my exceptional contributions include: 
(1) Development of a novel signal processing algorithm for analysis of Neuronal 
Signals. 
(2) Contributions in the field ofInformation Technology 
(3) Contributions in the field of Orthopaedic Oncology 
(4) Contributions in the field of Cardiology. 
I have made significant original contributions in the development of signal processing 
technology for analysis ofneuronal signals in the field of neuroscience and medicine. 
I have developed a novel algorithm that is currently being used and being investigated 
for the analysis of large-scale neuronal system. Some of the technologies I have 
developed [are in use] by commercial systems and investigators from other 
laboratories to advance their own research. My research has implications in the 
diagnosis and treatment of complex diseases such as Parkinson's, spinal cord 
injury, amputations which affect millions each year in the United States. Also 
these research areas are of high priority to the nation - it includes cochlear implants, 
deep brain stimulation - both tremendously successful technologies - as well as work 
in brain computer interfaces for aid to ALS patients and promising work in retinal 
implants, plus a host of neural control problems ranging from incontinence to 
migraines. I have also written promising work about exciting developments in the 
PageS 
area ofmolecular oncology and is likely to result in wider practical applications in the 
clinical setting .... 
Finally, the level of my expertise and the contributions I have made are well beyond 
and substantially greater than what would be expected of another u.s. worker with 
the same minimum qualifications .... 
My unique training as both a physician, engineer and a scientist ... allows me to not 
only care for patients but also to work in the laboratory to solve long standing clinical 
problems and to bring the next generation of cures to the bedside .... 
The evidence of my extensive and groundbreaking contributions in the area of 
genomic, proteomic and drug discovery technologies provided in this petition predicts 
enormous prospective benefit to the United States. Furthermore, it argues that 
granting a national interest waiver will greatly benefit the United States and 
significantly outweigh the benefits of the labor certification process. 
(Emphasis in original.) In a separate statement, the petitioner stated: "I have published my research 
[mdings in some of the very top journals in my area of research." The petitioner also claimed: "My 
research has been cited and extensively discussed in the scientific literature .... As objective 
evidence of the influence I have had on biomedical sciences, please refer to Exhibit 3A which 
provides a list of citations I have garnered for my publications within the last four years" 
(emphasis in original). Exhibit 3A is a printout from http://scholar.google.com, listing two citations 
of one of the petitioner's articles. The petitioner documented no other citations. 
Elaborating on the claim that his work "has been . . . extensively discussed in the scientific 
literature," the petitioner stated: "Not only has my research been cited by other scientists, but my 
work is now a rising topic of interest in the field of biomedical engineering and is discussed in great 
detail in several papers showing that my research has spurred other scientists to follow on my 
leads" (emphasis in original). The only evidence the petitioner submitted to support this claim is 
Exhibit 3B, "the cover page of [the] most recent edition of" engineering in 
The title of the cover is 
(emphasis in original). The petitioner does not explain how this 
journal cover shows that other researchers have "discussed [his work] in great detail in several 
papers." The petitioner's name does not appear on the cover, and the petitioner did not submit 
copies of any of the articles from that issue of the journa1. The cover, by itself, is not evidence that 
anyone is discussing the petitioner's work at all, much less proof of "extensive" discussion and 
widespread influence. 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)). Some of the petitioner's past work has involved wavelets, but this neither proves 
nor implies that any subsequent pUblication mentioning wavelets must discuss the petitioner's work 
or show the petitioner's influence. 
Page 6 
Several witness letters accompanied the initial submission. The petitioner asserted: "Some of these 
scientists have had no professional or personal association with me," but all of them have 
demonstrable ties to institutions where the petitioner has studied or worked. 
now at the stated: 
Before coming to the I was at the 
My research interests lie in the application of electrical engineering methodologies to 
neuroscience. My work influenced the development of neural spike sorting 
technologies, demonstrated that micro electro de array recording from brain slices was 
possible and productive, and has been a leader in the development of lithography to 
control the growth in culture of neurons and other cells. This work is aimed at basic 
science understanding of the behavior of small populations of neurons, in hopes of 
creating better insights into the functioning of the brain. 
[The petitioner] trained under me as an undergraduate student and graduate student. 
. .. His work primarily focused on the development of neural spike sorting 
technologies and algorithms. Neural spikes are the tiny electrical signals detected by 
micro electrodes placed very close to individual neurons. By distinguishing the spike 
or wave shapes - one unique shaper per nerve cell- one can enhance the amount of 
data gathered from a single recording .... Thus, [the petitioner's] field of study is of 
growing importance as scientists try to understand more about how the hugely 
complex brain processes information .... 
[The petitioner's] work as a Master's student was excellent. He attacked the spike 
sorting problem by applying the novel technique known as wavelet analysis to 
identify features of the spike waveforms that are much better suited to automatic 
sorting algorithms .... 
Overall, I find [the petitioner] to be an extremely talented and versatile scientist with 
expertise in [an] extraordinarily diverse array of disciplines such as, Engineering, 
Information Technology, Neuroscience and Clinical medicine. 
My professional association has been with [the petitioner] in an instructional capacity 
as his staff professor for courses he taught with me as a graduate student assistant. ... 
I initially met [the petitioner] when he was assigned to be a teaching assistant with me 
for the junior and senior level biomedical engineering instrumentation lecture and lab 
courses at the He is a gifted educator in 
the field of biomedical engmeermg, device design and 
-Page? 
testing. He was instrumental in developing the course materials for the first 
biomedical engineering lab course offered at the 
He was the first graduate student lab instructor for the _ 
Biomedical Engineering Lab which has now grown to become among the most 
popular courses to be taught in the biomedical engineering department. ... 
From a research standpoint [the petitioner] is a prominent scientist in the area of 
neural signal analysis and has made outstanding contributions towards the 
advancement of neural signal processing. I am familiar with the work that was being 
done in lab when [the petitioner] was a graduate student such 
[sic] technologies for the study of small neuronal networks, micropatteming the 
growth of individual neurons and neural signal processing. [The petitioner's] work 
will improve the understanding of how the human nervous system works. 
While scientists all across the world are working frenetically to make such a 
technology a reality, significant technical hurdles still remain. Fortunately, some of 
the recent advances made by [the petitioner] and co-workers address some of these 
fundamental challenges. [The petitioner] has made exciting progress towards 
construction of a novel mathematical technique known as wavelet analysis, to sort 
neural spike trains. His preliminary studies suggest that this algorithm may play an 
important role in [the] future of spike sorting, with even early implementation in 
commercial spike sorting systems. 
. . . [The petitioner] established a platform technology that may truly allow 
neuroscientists to perform multivariate analyses of multiple spike train data. This 
technology is developing and will hopefully become useful for analyzing signals from 
virtually any neuron in the body. [The petitioner's] technology represents one of the 
most promising and exciting developments in the area of neuronal spike train analysis 
and is likely to result in practical applications. Early adoption has begun in certain 
commercial spike sorting software program [sic]. This is particularly invaluable in 
the development of neural prosthesis for patients with absent limbs such as amputees 
and even paraplegics in the future. 
In summary, I consider [the petitioner] to be an exceptional biomedical scientist 
whose scientific contributions have had and will continue to have profound influence 
on the scientific and medical community ofthe United States. 
stated: "Although I have never had any professional 
association with [the petitioner], I have closely followed his scientific career through his publications 
in the biomedical sciences." Icalled the petitioner "a prominent scientist in the area of 
biomedical engineering and sciences [who] has made outstanding contributions towards the 
advancement of orthopaedic oncology and neural signal processing technologies." 
described at length the goals and "significant technical hurdles" of molecular oncology, and stated