dismissed EB-2 NIW Case: Medicine

U.S. Department of Homeland Security 
20 Mass. Ave , N.W., Rm. A3042 
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FILE: Office: TEXAS SERVICE CENTER Date: , 
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SRC 00 211 52013 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, for abandonment. The director reopened the matter and subsequently denied the petition on its merits. 
The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the AAO 
on motion.' The motion will be granted, the previous decision by the AAO will be affirmed and the petition will 
be denied. 
The petitioner seeks classification pursuant to section 203(b)(2)(B)(ii) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2)(B)(ii), as an alien physician. The petitioner asserts that he is an alien physician 
who has agreed to work full time as a physician in an area or areas designated by the Secretary of Health and 
Human Services as having a shortage of health care professionals. The director found that the petitioner did not 
work in a designated area at the time of filing and that the petitioner had not submitted an attestation from a 
government agency dated within six months prior to the filing date of the petition. On appeal, the AAO 
withdrew the director's finding that the attestation from a government agency needed to be dated within six 
months prior to the filing date of the petition when the regulations stating that requirement were issued after the 
petition was filed. The AAO upheld the director's determination that the shortage area in which the petitioner 
was working had to be so designated as of the date of filing. The AAO acknowledged that the area was 
redesignated after the date of filing, but noted that the petitioner had filed another petition after that date, which 
was approved. 
On motion, counsel asserts that the AAO wrongly relied on 8 C.F.R. 5 103.2(b)(12) and Matter of Kutigbak, 14 
I&N Dec. 45, 49 (Reg. Comm. 1971). Counsel asserts that approval of the petition conforms with the spirit of 
the law and will allow the petitioner's daughter to adjust status with him, since she is too old to derive benefits 
from his subsequent approved petition. 
While situations beyond the petitioner's control have had unfortunate consequences for his daughter, the only 
issue before us is the petitioner's eligibility. We will discuss counsel's assertions relating to this issue below. 
Section 203(b) of the Act, as amended, provides: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B)(i) Subject to clause (ii), 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 
1 Counsel requests that the motion, filed with a single fee, be considered as a simultaneous motion before the 
director and the AAO, but provides no legal basis for such a joint, simultaneous motion. As the AAO's 
decision is the most recent, we will consider the request as a motion to reconsider the AAO's decision. 
services in the sciences, arts, professions, or business be sought by an employer in the 
United States. 
(ii)(I) The Attorney'~enera1 shall grant a national interest waiver pursuant to 
clause (i) on behalf of any alien physician with respect to whom a petition 
for preference classification has been filed under subparagraph (A) if-- 
(aa) the alien physician agrees to work full time as a physician in 
an area or areas designated by the Secretary of Health and 
Human Services as having a shortage of health care 
professionals or at a health care facility under the 
jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in any 
State has previously determined that the alien physician's 
work in such an area or at such facility was in the public 
interest. 
The regulation at 8 C.F.R. 9 204.12(c) provides that a petitioner seeking a waiver as a physician intending to 
work in an underserved area must submit the following evidence: 
(l)(i) If the physician will be an employee, a full-time employment contract for the required 
period of clinical medical practice, or an employment commitment letter from a VA 
facility. The contract or letter must have been issued and dated within 6 months prior to 
the date the petition is filed. 
(ii) If the physician will establish his or her own practice, the physician's 
sworn statement committing to the full-time practice of clinical medicine 
for the required period, and describing the steps the physician has taken 
or intends to actually take to establish the practice. 
(2) Evidence that the physician will provide full-time clinical medical service: 
(i) In a geographical area or areas designated by the Secretary of HHS as 
having a shortage of health care professionals and in a medical specialty 
that is within the scope of the Secretary's designation for the 
geographical area or areas; or 
(ii) In a facility under the jurisdiction of the Secretary of VA. 
(3) A letter (issued and dated within 6 months prior to the date on which the petition is 
filed) from a Federal agency or from the department of public health (or equivalent) of 
a State or territory of the United States or the District of Columbia, attesting that the 
alien physician's work is or will be in the public interest. 
(i) An attestation from a Federal agency must reflect the agency's knowledge 
of the alien's qualifications and the agency's background in making 
determinations on matters involving medical affairs so as to substantiate 
the finding that the alien's work is or will be in the public interest. 
(ii) An attestation from the public health department of a State, territory, or 
the District of Columbia must reflect that the agency has jurisdiction over 
the place where the alien physician intends to practice clinical medicine. 
If the alien physician intends to practice clinical medicine in more than 
one underserved area, attestations from eack-intended area of practice 
must be included. 
(4) Evidence that the alien physician meets the admissibility requirements established by 
section 2 12(a)(5)(B) of the Act. 
(5) Evidence of the Service-issued waivers, if applicable, of the requirements of sections 
212(e) of the Act, if the alien physician has been a J-1 nonimmigrant receiving medical 
training within the United States. 
Although the facts were set forth in the AAO's previous decision, they bear repeating. On October 8, 1996, 
Spring Hill Medical Center filed a petition in behalf of the current self-petitioner. The petition sought the same 
classification and a waiver of the job offer requirement in the national interest pursuant to section 203(b)(2)(B) 
of the Act. The center was located in Hernando County, Florida, designated as an underserved area at the time. 
The Director, Vermont Service Center, approved the petition on October 10, 1995. On August 28, 2001, the 
Director, Tampa District Office, issued a notice of automatic revocation based on the termination of Spring Hill 
Medical Center's business. That decision is not before us on appeal. The petitioner continued to work in 
Hernando County on a J-1 nonimmigrant visa, obtaining a waiver of that visa's two-year foreign residence 
requirements in 1996 and entering the United States on an HI-B nonimmigrant visa on February 20, 1997. In 
May 1997, Hernando County lost its designation as a shortage area. In 1999, Congress amended section 
203(b)(2) of the Act to include subparagraph (ii), providing for national interest waivers of the job offer 
requirement for certain alien physicians. On June 26, 2000, the petitioner filed the instant petition pursuant to 
section 203(b)(2)(B)(ii) of the Act. On September 6, 2000, legacy Immigration and Naturalization Service 
(INS), now Citizenship and Immigration Services (CIS), issued interim regulations to implement the statutory 
amendment. The regulations went into effect on October 6,2000. 
In response to the director's request for evidence that Hernando County was designated as a shortage area, 
counsel conceded that the area of intended practice "was not underserved at the time of filing this Petition" but 
was redesignated in February 2002. Counsel asserted that the area was designated at the time the previous 
petition was filed and quoted the following from 65 Fed. Reg. 53892 (September 6,2000): 
The interim rule does not require that a physician relocate to another underserved area should 
the area the physician is practicing full-time clinical medicine lose its designation as an 
underserved area. The purpose of such a designation is to foster a greater physician presence in 
underserved areas. The Service believed one of the desired results of the statutory amendment 
is for physicians to take up residency in these areas and become integral parts of the 
community. Once an area is no longer designated as an underserved area, however, the Service 
can no longer grant national interest waivers for physicians to practice in that area (other than 
for physicians who will work in a VA facility). 
The director concluded that the prior petition did not relieve the petitioner from establishing that he intended to 
work in a designated area at the time of filing. On appeal, counsel reiterated his previous arguments. 
The AAO held that the petitioner must establish that he intended to work in a designated area at the time of 
filing, citing 8 C.F.R. $ 103.2(b)(12) and Matter of Katigbak, 14 I&N Dec. at 49. The AAO found that the most 
reasonable interpretation of the provision in the Federal Register quoted above is that it relates to an alien 
physician working in an area that loses its designated status after the date of filing. 
On motion, counsel asserts that the petitioner's service was responsible for Hernando County losing its 
designation and notes that it is now redesignated. Yet, subsequently, counsel asserts that the redesignation was 
due to the relocation "of many physicians from Hernando County." Counsel hrther asserts that 8 C.F.R. 
$ 103.2(b)(12) and Matter of Katigbak, 14 I&N Dec. at 49 are not proper authority for the AAO's conclusions. 
Specifically, counsel asserts that 8 C.F.R. $ 103.2(b)(12) "is a general statement with no detailed description of 
eligibility requirements." In addition, counsel asserts that Matter of Katigbak, 14 I&N Dec. at 49, dealt with 
academic qualifications, which the instant petitioner had at the time of filing. Finally, counsel asserts that the 
regulations could not anticipate every situation, and that the petitioner's situation is unique and in compliance 
with the controlling statute. Counsel references a comment on the regulations by the American Immigration 
Lawyers Association (AILA), but does not explain how this comment is binding on us. 
Counsel is not persuasive. The record lacks evidence that the petitioner was solely responsible for Hernando 
County losing its designated status. Regardless, Hernando County lost its designated status in May 1997, three 
months after the petitioner entered the United States as an H1-B nonimmigrant2 but more than two years prior to 
the enactment of the law under which the petitioner now seeks classification. At the time the law was passed 
and the time when the petitioner filed the instant petition, Hernando County was not designated as an 
underserved area. 
Contrary to counsel's assertion that the regulations do not anticipate a similar situation, the commentary to the 
regulations does address the situation where the location of the employment loses its designation as 
underserved. While the commentary does state that the physician need not relocate, it also states that when an 
area loses its designation, CIS "can no longer grant national interest waivers for physicians to practice in that 
area (other than for physicians who will work in a VA facility)." Thus, while a physician whose petition is 
approved but who has yet to complete his five years of employment need not relocate if his location loses its 
designation, the same is not true for physicians who have yet to file a petition and arguably even for those who 
have filed but have not yet been approved. Thus, that-tlie county was designated prior to May 1997 is not a 
basis for concluding that the petitioner's instant petition, filed in 2002, was based on an intent to work in an 
underserved area. 
Regarding the county's redesignation in 2002, we find that 8 C.F.R. tj 103.2(b)(12) and Matter of ~atigbak, 14 
I&N Dec. at 49 are relevant. Eligibility for the classification sought includes practicing in an underserved area 
as designated by HHS. The regulation at 8 C.F.R. $ 103.2(b)(12) provides that any response to a request for 
2 
The petitioner cannot include any employment performed while in status as a J-1 nonimmigrant. 8 C.F.R. 
0 9 245.18(e)(2), (3). 
/ 
additional evidence must "establish filing eligibility at the time the application or petition was filed." The 
general nature of this provision does not diminish its relevance; rather, it suggests this regulation covers every 
element of eligibility. In'addition, Matter of Katigbak may have involved academic credentials, but it stands for 
the general proposition that an alien must be "must be qualified at the time the petition is filed with this 
Service if a priority date for visa issuance is to be established." Matter of Great Wall, 16 I&N Dec. 142 
(Acting Reg. Cornm. 1977)(extending the holding in Matter of Katigbak to the issue of ability to pay). Thus, 
the county's redesignation after the date of filing is not evidence of the petitioner's eligibility as of the date of 
filing. 
? 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. Accordingly, the previous decision of the AAO will be 
affirmed, and the petition will be denied. 
, 
ORDER: The AAO's decision of January 3,2005 is affirmed. The petition is denied.