dismissed EB-2 NIW Case: Medicine

prevent cleml;. :i:?~Yvarranted 
invasion c~f pmnal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
SRC 06 26452230 
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: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
Xert P. Wiemann, Chief 
Administrative ~p~eals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, approved the employment-based immigrant visa 
petition and certified that decision to the Administrative Appeals Office (AAO). The AAO withdrew 
the director's decision and remanded the matter for fiuther action and consideration. The matter is now 
before the AAO again on certification. The director's decision will be affirmed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 9 1153(b)(2), which includes aliens of exceptional ability and members of the 
professions holding an advanced degree.' 
The petitioner left blank part 6 of the petition, which asks for basic information about the proposed 
employment. The petitioner asserts that an exemption from the requirement of a job offer, and thus of 
an alien employment certification, is in the national interest of the United States. The director initially 
found that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree and that the petitioner had established that an exemption from the requirement of a job offer 
would be in the national interest of the United States. 
The AAO withdrew that decision on certification, remanding the matter for further consideration as to 
whether the beneficiary's proposed employment would provide benefits that are national in scope and 
whether the beneficiary had a past record of achievements in the field with some degree of influence on 
the field as a whole. 
The director issued a new request for additional evidence on September 25, 2007. The petitioner 
responded. The director concluded that while the petitioner had a notable research history, the 
petitioner intended to work as Chief of Pulmonary and Critical Care Medicine, which would provide 
only local benefits. 
The director certified the decision to this office pursuant to the regulation at 8 C.F.R. 5 103.4. Pursuant 
to the regulation at 8 C.F.R. 9 103.4(a)(2), the director gave notice to the petitioner that he could file a 
brief with this office within 30 days. The director dated the decision November 15, 2007. As of this 
date, more than 30 days later, this office has received nothing further. For the reasons discussed below, 
we affirm the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
I 
 Initially, counsel asserted that the petitioner was an alien of "extraordinary ability" (a separate classification 
pursuant to section 203(b)(l)(A) of the Act), but in response to the director's notice of intent to deny, counsel 
asserted that the petitioner is an advanced degree professional. 
(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 services in the sciences, arts, professions, or business be sought by an 
employer in the United States. 
(ii)(I) The Attorney General 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. 
As stated in our previous decision, the petitioner holds a Bachelor of Medicine and Surgery, a five and 
one half year program, from the elite All India Institute of Medical Sciences. This degree was found to 
be equivalent to a U.S. medical degree. The petitioner's occupation falls within the pertinent regulatory 
definition of a profession. The petitioner thus qualifies as a member of the professions holding an 
advanced degree. The remaining issue is whether the petitioner has established that a waiver of the job 
offer requirement, and thus an alien employment certification, is in the national interest. 
The procedural history of this matter was recounted in detail in our previous decision. In summary, 
counsel initially cited the precedent decision relating to section 203(b)(2)(B)(i), Matter of New York 
State Dep 't. of Transp., 22 I&N Dec. 21 5 (Comrnr. 1998), and asserted that the petitioner meets the 
requirements set forth in that decision but included an exhibit labeled, "Evidence of National 
Shortage of Specialists in the Field & National Importance." 
The director's initial notice of intent to deny, dated December 8, 2006, was issued pursuant to 
section 203(b)(2)(B)(ii) of the Act relating to physicians in an underserved area. In response, 
counsel asserted that the petitioner was not seeking the waiver as a physician proposing to work in an 
underserved area pursuant to section 203(b)(2)(B)(ii) of the Act, but under the more general 
provision at section 203(b)(2)(B)(i) of the Act. 
The director concluded that nothing in the law precludes a physician from seeking a waiver under the 
more general provisions of section 203(b)(2)(B)(i) of the Act. The director then listed the three 
elements set forth in Matter of New York State Dep't of Transp., 22 I&N Dec. at 217-218, focusing 
solely on the third element. 
As stated in our previous decision, neither the statute nor pertinent regulations define 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states: 
The Service 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 "excegtional."] The burden will rest 
with the alien to establish that exemption fiom, 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 Dep 't. of Transp., 22 I&N Dec. at 2 17-21 8, has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be 
shown that the alien seeks employment in an area of substantial intrinsic merit. Id. Next, it must be 
shown that the proposed benefit will be national in scope. Id. 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. Id. 
The national interest waiver hinges on prospective national benefit. In evaluating this issue, it clearly 
must be established 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 inclusion of the term "prospective" 
is used 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. Thus, an examination of the alien's past record is useful in projecting future benefit. 
Nevertheless, Citizenship and Immigration Services (CIS) must also review the alien's proposed future 
work. In other words, a past record of achievement is not necessarily sufficient if the alien's proposed 
fume employment has a different focus. 
Neither the director nor the AAO has ever contested that the beneficiary works in an area of substantial 
intrinsic merit, rnedi~ine.~ The AAO, however, raised concerns regarding whether the petitioner's 
future employment would provide benefits that are national in scope. Previously, the petitioner 
performed clinical research at the St. Elizabeth Health Center in Youngstown, Ohio, and at the Baylor 
College of Medicine in Houston, Texas. In his curriculum vitae, the petitioner lists his roles at these 
hospitals as including significant physician duties. The petitioner also, however, indicated that he 
presented the results of studies at national and international meetings while at the St. Elizabeth Health 
Center and that he performed similar duties, including designing a study protocol, while at the Baylor 
College of Medicine. The AAO noted that the petitioner listed no research duties among his various 
roles in his current position as Chief of Pulmonary and Critical Care Medicine at LRG Healthcare in 
New Hampshire. The AAO acknowledged that some of the petitioner's articles are recent, but noted 
that they relate to research he performed at the Baylor College of Medicine. While counsel and the 
petitioner, in his curriculum vitae, both reference ongoing research, that research is ongoing at the 
Baylor College of Medicine, where the petitioner no longer works. Thus, the AAO questioned whether 
the petitioner has not established that his future employment includes a significant amount of research. 
The AAO noted the following language: 
[Tlhe analysis we follow in "national interest" cases under section 203(b)(2)(B) of the 
Act differs from that for standard "exceptional ability" cases under section 203(b)(2)(A) 
of the Act. In the latter type of case, the local labor market is considered through the 
labor certification process and the activity performed by the alien need not have a 
national effect. For instance, pro bono legal services as a whole serve the national 
interest, but the impact of an individual attorney working pro bono would be so 
 . 
attenuated at the national level as to be negligible. Similarly, while education is in the 
national interest, the impact of a single schoolteacher in one elementary school would 
not be in the national interest for purposes of waiving the job offer requirement of 
section 203(b)(2)(B) of the Act. As another example, while nutrition has obvious 
intrinsic value, the work of one cook in one restaurant could not be considered 
sufficiently in the national interest for purposes of this provision of the Act. 
Matter of New York State Dep 't of Transp., 22 I&N Dec. at 21 7, n.3 
The AAO further noted that Congress enacted section 203(b)(2)(B)(ii) of the Act for a select category 
of physicians after Matter of New York State Dep't of Transp., 22 I&N Dec. at 215, was issued as a 
precedent decision. By enacting that law, Congress identified the only category of physicians entitled 
to a waiver of the alien employment certification process based solely on their work as physicians. We 
cannot presume that Congress intended special consideration for any other class of physicians. The 
2 
 While we concur with the director's conclusion on this point, our conclusion is based on the plain language 
expressed in Matter of New York State Dep't of Transp., 22 I&N Dec. at 217, and not the non-precedent 
decision referenced by the director. 
Page 6 
petitioner has declined to comply with that provision and does not claim to fall within the category of 
eligible physicians identified by Congress. Thus, the petitioner must establish that the proposed 
benefits will be national in scope as contemplated by the above language. 
While counsel asserts generally in his response to the director's September 25, 2007 request for 
additional evidence that the petitioner's services with his current employer will be national in scope, 
none of the evidence submitted at that time addresses this issue. The new letter from the petitioner's 
employer praises his abilities and the leading and critical nature of the petitioner's position there, but 
fails to explain how the benefits of the petitioner's employment there will be national in scope. 
Without additional evidence demonstrating how the petitioner's new administrative and clinical 
responsibilities, rather than his previous research responsibilities, will provide benefits that are 
national in scope, we must uphold the director's decision. 
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. 5 1361. The petitioner has not sustained that burden. Accordingly, the decision of the 
director denying the petition will be affirmed. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: 
 The director's decision is affirmed; the petition is denied.