dismissed EB-2 NIW Case: Medicine

identif)ing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
FILE: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER Date: AUG 0 4 2009 
SRC 07 800 26506 
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. 8 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 103.5(a)(l)(i). 
un F. Grissom 
Acting Chief, Administrative Appeals Office 
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 to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1153(b)(2), as a member of the professions holding an advanced 
degree. Group Health Plan, Inc. (Group Health), Bloomington, Minnesota, seeks to employ the 
beneficiary as a gastroenterologist. 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 because the 
beneficiary seeks to practice medicine in a medically underserved area. The director found that a key 
document was not executed during the period required by regulation. 
On appeal, the petitioner argues: "The basis for denial is a minor technicality." 
Part 1 of the Form 1-140 petition identifies Group Health as the petitioner, and Form G-28. Notice of 
Entry of Appearance as Attorney or ~e~resentaive, identifies of Faegre & 
Benson LLP as the petitioner's attorney of record. Review of the petition form, however, indicates that 
is the petitioner. An applicant or petitioner must sign his or her application or petition. 
8 C.F.R. 6 103.2(a)(2). In this instance, Part 8 of the Form 1-140, "Signature," bears- 
name, telephone number and electronic mail address. Thus, 
 and not Group Health, 
has taken responsibility for the content of the petition. Ths will not affect the adjudication of the 
appeal, because the U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. 
§204.5(k)(l) indicates that an 
 erson ma file a petition on behalf of an alien seeking a national 
interest waiver, and because -also filed the appeal. 
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 whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer - 
(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. 
Page 3 
(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. 
The sole issue in contention concerns one of the documentary requirements set forth in USCIS 
regulations. Under 8 C.F.R. 5 103.2(a)(7), the date that the service center receives a petition is the 
petition's filing date. The petitioner electronically filed the Form 1-140 petition on July 30, 2007. 
Therefore, the petitioner must establish that the petition was approvable as of July 30, 2007. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the application or petition. All required application or petition forms must be properly 
completed and filed with any initial evidence required by applicable regulations andlor the form's 
instructions. 8 C.F.R. 5 103.2(b)(l). See also Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. 
Commr. 1971). A petitioner may not make material changes to a petition that has already been filed 
in an effort to make an apparently deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). The regulations and case law are clear that a 
petitioner may not prematurely file an employment-based immigrant petition, on the expectation that 
the beneficiary will later become eligible or that required evidence will later come into existence. 
8 C.F.R. 5 204.12(~)(3) requires the petitioner to submit 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. The petitioner submitted 
a letter from an official of the Minnesota Department of Health (MDH), dated July 31, 2007, 
asserting that the beneficiary's "work . . . [is] and will continue to be in the public interest." 
The director denied the petition on December 15, 2008, stating that the MCH letter is dated after the 
July 30, 2007 filing date, and therefore does not meet the requirement "that the letter must be dated 
during the six-month period preceding the filing of the petition" (director's emphasis). 
On appeal, the petitioner states: "The basis for denial is a minor technicality with no relevance to [the 
beneficiary's] eligibility for a national interest waiver." The beneficiary's eligibility for the waiver is 
only one factor that USCIS must consider when adjudicating a petition. 8 C.F.R. $ 103.2(a)(l) states 
that a petition cannot be approved unless it is properly filed in accordance with the relevant instructions. 
The reference to "a minor technicality" necessarily implies that there are also "major technicalities" that 
USCIS cannot overlook. The petitioner cites no statute, regulation, or case law that would permit a 
meaningful, objective distinction between a "minor technicality" and a "major technicality." The 
petitioner argues, in effect, that the petitioner need not meet all of the regulatory requirements, so long 
as the petitioner has met most of them. Such an argument begs the question of how many omissions 
USCIS must overlook before denial is warranted. There can, therefore, be no allowance for "minor 
technicalities"; if a petition does not conform to all applicable requirements, then USCIS has no 
discretion to approve the petition. An agency is bound by its own regulations. See, e.g., Panhandle 
Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 6 13 F.2d 1 120 (C.A.D.C., 1979). 
In a similar vein to the above argument, the petitioner contends: "The denial is based on an excessively 
technical interpretation of a regulation." The plain wording of the regulation requires the letter to have 
been issued "within 6 months prior to the date on which the petition is filed." The petitioner fails to 
provide a less "technical interpretation" by which a date after the filing date is, nevertheless, "prior to 
the [filing] date." 
Also with respect to interpretation, the petitioner states: "the decision's interpretation of 8 C.F.R. 
8 204.12(~)(3) is contrary to Congressional intent." Section 203(b)(2)(B)(ii)(I)(bb) of the Act requires 
the petitioner to show that "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" (emphasis added). Where the language of a statute is clear on its face, there is no need 
to inquire into Congressional intent. INS v. Phinpathya, 464 U.S. 183 (1984). 
The petitioner acknowledges the statutory language quoted above, but asserts that MDH "did 
'previously determine that [the beneficiary's] work was in the public interest in 2005, in its letter 
supporting his J-1 waiver application. The six month period provided in the regulations is an 
additional obligation not supported by the statute." 
Section 103(a) of the Immigration and Nationality Act requires the Attorney General to establish 
such regulations as he deems necessary for carrying out his authority under the provisions of that 
Act. The Attorney General has delegated certain rule making authority to the Commissioner of 
Immigration and Naturalization. 8 C.F.R. 5 100.6. The regulations at 8 C.F.R. 5 204.12 were issued 
under the authority of the Attorney General and the Commissioner of the Immigration and 
Naturalization Service, who had authority over immigration matters prior to the creation of USCIS 
within the Department of Homeland Security on March 1,2003. 
Congress is presumed to be aware of existing administrative and judicial interpretations of statutes. 
See Lorillard v. Pons, 434 U.S. 575, 580 (1978). The regulatory six-month period has existed for 
nearly a decade, with no Congressional action to modify or remove that requirement. By necessity 
and by design, regulations contain details that are not found in the underlying statute. The existence 
of these details does not nullify the regulations. 
Page 5 
The petitioner argues: "The regulation . . . did not contemplate the electronic filing procedure where the 
supporting documentation is submitted by mail during the following seven business days." The 
petitioner fails to explain why electronic filing alters the meaning or intent of the regulation. The seven- 
day submission period that follows the electronic filing date is simply to accommodate the mailing of 
documentary .evidence that, by nature, cannot be submitted electronically; it is not an additional 
opportunity for the petitioner to solicit or create evidence that did not exist on the filing date. 
The petitioner argues "the decision to deny this petition is against the interests of USCIS, the State of 
Minnesota, the community of St. Paul, and HealthPartners." The petitioner also asserts that re-filing the 
petition would be "an inefficient waste of time and resources." These issues are distractions that offer 
no resolution of the issue at hand. The director is not required, or even permitted, to approve a petition 
that is improperly filed or that lacks acceptable required evidence. The petitioner erred by filing a 
petition before required documentation existed. The petitioner's stated aversion to re-filing the petition 
does not justify the reversal of a procedurally proper denial. See Reuters Ltd. v. F. C. C., 78 1 F.2d 946, 
(C.A.D.C., 1986) (an agency must adhere to its own rules and regulations; ad hoc departures from those 
rules, even to achieve laudable aims, cannot be sanctioned). 
Review of the record indicates a second issue of concern. The AAO maintains plenary power to 
review each appeal on a de novo basis. 5 U.S.C. 8 557(b) ("On appeal from or review of the initial 
decision, the agency has all the powers which it would have in making the initial decision except as 
it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 925 
F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
If the physician will be an employee (rather than start his or her own practice), the USCIS regulation at 
8 C.F.R. 5 204.12(c)(l)(i) requires the petitioner to submit a full-time employment contract for the 
required period of clinical medical practice. The contract must have been issued and dated within 6 
months prior to the date the petition is filed. The beneficiary's original contract with Group Health is 
dated September 25, 2004, nearly three years prior to the filing date, and is therefore too old to qualify 
under the regulations. An "Amendment to Physician Service Agreement" is dated July 3 1, 2007, the 
day after the petition's filing date. Therefore, the contract, like the MDH letter, falls outside the 
regulatory period. 
The petitioner, by filing the petition before obtaining required evidence, failed to follow procedures 
mandated by both statute and regulation. The petition therefore cannot be approved. 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. The AAO must therefore dismiss the appeal. 
This decision is without prejudice to the filing of a new petition that conforms to all relevant statutory 
and regulatory requirements, accompanied by appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.