dismissed EB-2 NIW Case: Neonatal-Perinatal Medicine

(b)(6)
DATE: .NQV 0 5 Z0140FFICE: TEXAS SERVICE CENTER 
IN RE: 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 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
Thank you, 
)J VJljAJ/ Y1 tL 
(1 Ron Rosenberg 
~ 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 on appeal. We 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 an alien of exceptional ability in the sciences, the arts, or business. The 
petitioner seeks employment as a physician specializing in neonatal-perinatal medicine. At the time he 
filed the petition, the petitioner was a fellow at the 
U.S. Citizenship and hnmigration Services (USCIS) records identify his latest employer as 
the University of Iowa, although USCIS records include no corresponding change of address notice 
from the petitioner. 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. 
Although the petitioner had claimed exceptional ability, the director made an alternative finding that the 
petitioner qualifies for classification as a member of the professions holding an advanced degree. This 
alternative finding does not affect the outcome of the petition or the petitioner's eligibility for related 
benefits, because section 203(b )(2) of the Act encompasses both classifications. The director found 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, asserting that key evidence was "not duly considered." 
For a time, attorney represented the petitioner in this proceeding before the 
director. There is, however, no evidence that the attorney participated in preparing or filing the appeal; 
the petitioner signed the appeal on his own behalf. The instructions to Form I-290B, Notice of Appeal 
or Motion, advise that attorneys "must attach a Form G-28, Notice of Entry of Appearance as Attorney 
or Representative" to the appeal, as required by the regulation at 8 C.F.R. § 292.4(a). The appeal does 
not include this form, and there is no evidence that the attorney participated in the preparation of the 
appeal. We therefore consider the petitioner to be self-represented. 
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-
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NON-PRECEDENT DECISION 
(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 sole question on appeal 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 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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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, 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 "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 Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. 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. /d. at 217-18. 
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. /d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here 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. /d. 
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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 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 I-140, Immigrant Petition for Alien Worker, on June 25, 2013. An 
accompanying introductory statement indicated that the petitioner "is one of a few that can boast of 
expertise in the use of which is a very unique and 
complex neonatology procedure used to provide oxygen to the whole body when the lungs and heart 
of the newborn infant are so severely diseased or damaged that they cannot function properly on 
their own." The treatment of individual patients is inherently local in scope. Furthermore, the 
record does not show that the petitioner created or significantly improved only that he has 
learned the technique. Exposure to advanced technology constitutes, essentially, occupational 
training which can be articulated on an application for a labor certification. Special or unusual 
knowledge or training does not inherently meet the national interest threshold. The issue of whether 
similarly-trained workers are available in the United States is an issue under the jurisdiction of the 
Department of Labor. See NYSDOT, 22 I&N Dec. at 221. 
The petitioner asserted that he also serves the national interest through conducting research in 
pediatric medicine. The benefit from medical research is national in scope, because the 
dissemination of original research findings through publication and presentation allows important 
new information to influence the field. The petitioner submitted copies of abstracts and other 
evidence of research presentations, review copies of two prepublication manuscripts, and other 
documentation of his involvement in research in conjunction with his ongoing medical training. 
Research is an avenue toward national influence, but not every researcher qualifies for the national 
interest waiver. To justify the prediction of future benefit, the petitioner must establish the 
importance and influence of his past research endeavors. 
The petitioner submitted letters from faculty members. Dr. 
professor and chief of the Division of Neonatology, stated that the petitioner "has expertise in the 
most complex neonatal procedures, those performed by a small percentage of experts and skilled[] 
physicians at the top of the field .... [The petitioner] has made a significant impact on his specialty." 
Rather than explain the significance of the petitioner's achievements, Dr. described 
some of them and asserted that only top physicians are capable of those achievements. 
Dr. professor at , stated: "[The petitioner's] significant 
contributions and 
expertise are critical to the completion of our research work. I anticipate that his research activities 
in the following years will remain instrumental to the improvement of neonatal health in the United 
States and indeed worldwide." Dr. praised research projects by the petitioner that led to poster 
presentations at conferences, and he stated that the petitioner "belongs to the top, very small group of 
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PageS 
physicians who have the knowledge, and the ability to combine research work with clinical 
training." 
Dr. , assistant professor at , stated that the petitioner's "findings have 
provided a better understanding of infectious disease processes in the newborn infant," and that the 
petitioner "is also renowned for [his] remarkable ability to manage very sick newborn babies." 
Dr. , affiliate assistant professor at as well as infection prevention and control 
officer at described some of the petitioner's research projects, 
calling them "very significant in the medical community" and indicating that their publication, as 
abstracts, "clearly indicates [the petitioner] is a physician-scientist at the top of his field." 
Other letters are from writers outside of Dr. now an assistant 
professor at previously worked with the petitioner at 
He stated that the petitioner's projects appeared at "distinguished academic forums" 
for which "[o]nly 
the top articles are selected out of thousands." The record does not document the 
selection process for the conferences in question. 
Dr. professor at 
--------------~ 
described a recent conference 
presentation by the petitioner: 
[The petitioner], and his fellow physician-scientists at the _ 
evaluated the impact of diagnostic Group B Streptococcus (GBS) DNA PCR use 
during delivery as a preventive strategy for early onset GBS sepsis in newborn babies. 
He, with his colleagues, highlighted a remarkable decline in the incidence of GBS 
disease in newborn infants since this strategy was introduced in 2008 revealing the 
effectiveness of this relatively newer method of neonatal GBS disease prevention. 
[The petitioner's] impressive results were very well received and have encouraged the 
use of this GBS disease-limiting method in various neonatal-perinatal units across the 
United States. 
Dr. did not indicate that the petitioner was responsible for developing the method, only that the 
petitioner gave a report about its effectiveness. The assertion of "a remarkable decline ... since this 
strategy was introduced in 2008" indicates that the improved method was already in widespread use. 
As for the petitioner's role in further promoting the method, Dr. ; letter is dated May 23, 2013, 
16 days after the petitioner gave the presentation on May 7, 2013. The petitioner has not established 
that his presentation was responsible for an effect of such immediacy and magnitude that Dr. 
would have been aware of the effect barely two weeks after the presentation. 
Dr. also commented on one of the petitioner's then-ongoing research projects, saying: "This 
study will not only help in early diagnosis of necrotizing enterocolitis but will certainly help to 
separate out infants that have merely bowel milk intolerance." Comments on what the study will 
accomplish, before the results of that study are known, appear to be premature. 
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Dr. 
NON-PRECEDENT DECISION 
---' associate professor at the stated: 
I had the opportunity to judge and evaluate [the petitioner's] research work ... at the 
... His work on newborn infections 
and immunology was not only well received, but his presentation was logical and 
excellent. I was very happy his was selected as one of the best presentations .... 
He is also a distinguished member of highly selective and respectable research 
societies. namelv: ' and the 
Only scientists and researchers with outstanding 
achievements, with research work that have significant impact in the United States 
are accepted into these societies. Few of hundreds of applications are granted. 
The petitioner submitted welcome letters from the two named societies, but no evidence to support 
Dr. claims regarding the difficulty of joining those organizations. 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)). 
The director issued a request for evidence (RFE) on August 19, 2013. The director noted that the 
petitioner had not documented any full article publications, and asserted that the petitioner had not 
established the national scope of his fellowship at The director instructed the petitioner to 
submit additional evidence to show that his past record justifies projections of future benefit at a 
level that would warrant approval of the national interest waiver. 
In response, the petitioner submitted background evidence about diseases and disorders relating to 
his research and clinical practice. The director did not question the intrinsic merit of clinical practice 
and medical research, and therefore these materials do not rebut any material element of the RFE. 
The petitioner asserted: 
(Emphasis in original). The petitioner submitted a printout of an electronic mail message, inviting 
the petitioner to review abstracts for the meeting, but this documentation does not support the 
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petitioner's claims about the significance or prestige of the invitation, or the number of people 
invited to serve as reviewers. The petitioner received the invitation on September 24, 2013, three 
months after he filed the petition. Therefore, the invitation could not retroactively establish 
eligibility even if the petitioner had supported his claims about the importance of the invitation. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the benefit request. 8 C.P.R. § 103.2(b)(1),(12). 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'l Comm'r 1971). 
The petitioner submitted copies of several invitations to peer-review manuscripts, but he did not 
establish that this involvement in peer-review work distinguishes him within his profession in any 
relevant way. Similarly, the petitioner documented grant funding of his research projects, but he did 
not show that such grant funding is a distinction rather than the norm among researchers in his 
specialty. 
The petitioner repeated the assertion that he belongs to societies whose membership requirements 
are "extremely competitive," and that therefore his membership "evidences his exceptional research 
achievements." The petitioner submitted evidence of the memberships, but not of the membership 
requirements. Without that evidence, claims about the significance of the memberships have no 
weight in this proceeding, whether those claims come from the petitioner himself or from third 
parties whom the petitioner has selected (but who have no authority to attest to the societies' 
membership requirements). 
The director denied the petition on March 26, 2014. The director quoted from some of the submitted 
letters and discussed the petitioner's research, concluding that the petitioner had not established that 
his work has influenced the field as a whole. The director found, therefore, that the petitioner had 
not met the national scope prong of the NYSDOT national interest test, but that prong relates to the 
underlying occupation rather than to the petitioner's individual achievements within that occupation. 
Medical research produces benefits that are national in scope. Nevertheless, the director's basic 
finding stands: the petitioner has not shown the influence of his existing work. 
On appeal, the petitioner states: 
[A] proper evaluation of my prior contributions and standing in the field of 
medicine was not performed. This is evidenced by the fact that my respectable 
position as a distinguished reviewer for the academic societies, my multiple 
publications and outstanding presentations of research work all across the world were 
not duly considered in the making of this decision. 
I would like to further assert that my work and contributions in the field of neonatal 
medicine are demonstrably in the interest of the United States of America and have 
been of significant intrinsic merit. 
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The director, in the denial notice, found that the petitioner had submitted evidence of only one 
published article (an article in the _ _ , with the petitioner's other 
claimed publications being either abstracts of conference presentations or unpublished manuscripts. 
The petitioner does not rebut this finding on appeal by stating that his "multiple publications . 
_ . 
were not duly considered." 
With respect to consideration of the petitioner's conference presentations, the director acknowledged 
those presentations several times in the denial notice. Such presentations do not establish eligibility 
for the national interest waiver; the petitioner must establish their influence on his field. The 
petitioner, on appeal, claims that the director failed to conduct "a proper evaluation" of his 
"outstanding presentations of research work," but failed to explain how the director's discussion was 
deficient. 
The petitioner correctly asserts that the director's denial notice included no discussion of the 
petitioner's work as a "reviewer for the academic societies." The petitioner, however, does 
not explain why that discussion should have led to the approval of the petition. As noted previously, 
the petitioner has not supported his claims about the significance of this reviewing work. 
Furthermore, he received the invitation several months after the petition's filing date, too late to 
establish eligibility as of that filing date. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from 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. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.