dismissed EB-2 NIW Case: Neonatology

(b)(6)
DATE: NOV 2 8 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
FILE: 
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: 
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 thro ugh 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, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
lJiffr��=trative 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 a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician specializing in neonatology. When he filed the petition, the 
petitioner was a fellow at 
, New York. is affiliated with 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 a job offer would be in the national interest of the 
United States. 
On appeal, the petitioner asserts that he has established eligibility for the benefit he seeks. 
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) ... 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 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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOl st 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. Cornm'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. 
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 oftheir 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 27, 2013. An 
accompanying statement indicated that the petitioner's work is national in scope because 
"[h]e has had his original research work presented at conferences that are national and even 
international." The petitioner documented two such conferences, both in conjunction \vith his 
ongoing fellowship training. These materials do not show that the petitioner's research career would 
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continue after his training was complete. The petitioner submitted several communicati ons from 
recruiters seeking pediatricians for clinical practi ce, but no indication of similar interest from 
research-oriented institutions. 
The petitioner claimed: 
[The petitioner] is known in the medical community to possess clinical skills that 
cannot be objectively quantified. He is very well-known for his diagnostic ability ... . 
[T]he labor certification process ... is not able to take into consideration the unique 
skills he has developed as a neonatologist, the tremendous national impact of the 
research work that he has done, and the reputation that [he] has sustained amongst his 
peers nationally. 
To support claims regarding his reputation, the petitioner submitted six letters. The petitiOner 
claimed: "these letters come from experts in the field from around the country both from institutions 
at which [the petitioner] has worked and institutions at which he has not worked. " The curricula 
vitae of the individuals who provided the letters show that all of them trained or worked at 
institutions where the petitioner has trained. 
Five of the six letters are from individuals at institutions in southeastern New York. The sixth letter 
is from Dr. , who was a resident at from 2006 to 2009, and a fellow at 
from 2009 to 2012. Dr. now an assistant professor at the 
Health Science Center, called the petitioner "an exceptional neonatologist whose contributions to the 
medical community are valuable, necessary as well as immeasurable." Dr. did not describe 
those contributions except to identify the conferences where the petitioner had presented his work, 
and to assert that the petitioner practices medicine as well as trains medical students and house staff 
at 
Dr. art assistant professor at and an attending neonatologist at 
claimed that the petitioner's "reputation ... has enabled him to attract patients from across 
the region who seeks his [sic] out specifically for the rare level of care she [sic] can provide." Dr. 
claimed that the petitioner "has garnered significant acclaim for his pioneering 
research," but the record contains no objective evidence to support this claim. 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 
ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comrn'r 1972)). 
Dr. assistant professor at stated that the petitioner "has been responsible 
for coordinating the resuscitation and stabilization of delivered infants," and has had "immense 
success" in this area. Dr. asserted that the petitioner "is also recognized throughout the 
medical community for his important research," but the record contains no evidence of this 
recognition outside of physicians with ties to the institutions where he has trained. 
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Dr. professor at and associate director of the _ 
stated that the petitioner's "combination of incredible aptitude and his 
ability to diagnose and treat neonatal patients .. . make him an elite physician." 
Dr. , now site director at � 
New York, was a fellow at from 1999 to 2002, and an assistant professor there from 
2002 to 2005. Dr. had previously collaborated with Dr. as shown by their shared 
authorship of a 2008 paper listed on Dr. curriculum vitae. Dr. stated that the 
petitioner "has garnered many honors and awards due to his clinical and research expertise. For 
example, [the petitioner] is a Board Certified pediatrician who has won earned [sic] highly coveted 
roles at prominent health centers such as 
Hospital in competition with his peers." The petitioner's roles at those hospitals were those of a 
trainee on house staff A house staff appointment, however competitive, is not an "award." Rather, 
it represents continued training within a medical specialty. 
Dr. is an attending neonatologist at 
New York, where the petitioner was a resident from 2008 to 2011. Dr. 
stated that the petitioner is a coordinator of " in 
which role "he directs pertinent data collection, improves patient logistics and conduct[s] cool cap 
workshops at their affiliate[d] neonatal units." A article about the cooling program 
indicates that several hospitals are involved in a clinical trial of the cap, and that "[t]he trial was 
sponsored by which is now developing the cap for general medical 
use." Thus, the petitioner's involvement consists of testing a novel medical device developed 
elsewhere. 
A section of the record labeled "Significant Contributions to Field" includes several documents, 
none of which identifies any significant contribution that the petitioner has made to his field. One 
document shows that the petitioner is board certified in pediatrics, but board certification is a 
credential, rather than a contribution to the field. The remaining exhibits identified as contributions 
are all background materials about various medical procedures. The petitioner's name does not 
appear in these materials, and there is no indication that the petitioner developed these procedures. 
Learning how to perform an already existing procedure is not a substantial contribution to the field 
of medicine. 
The director issued a request for evidence on July 30, 2013. The director stated that the petitioner 
had not established the national scope of his proposed employment or established "a past record of 
specific prior achievement with some degree of influence on the field as a whole." 
In response, the petitioner claimed: "We have unmistakably demonstrated that the benefit of [the 
petitioner's] work is national in scope. 
The petitioner also asserted: "Requiring [the petitioner] to obtain a labor certification would result in 
an interruption of his clinical work, potentially on a permanent basis." The petitioner did not explain 
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or elaborate. At the time of filing, the petitioner was in an inherently temporary house staff position, 
with no documentary evidence showing he was guaranteed an ongoing position with the same 
employer. 
The petitioner claimed: "the Department of Labor has recently held in several prevailing wage 
requests that where a physician will provide patient care, education, and research, that this 
constitutes a combination of occupations, which is deemed inappropriate for labor certification." 
The petitioner submitted no evidence and cited no sources to support this claim, and did not show 
that the Department of Labor had denied labor certification applications (as opposed to and as 
distinct from prevailing wage requests) for the reason identified. The record indicates that medical 
school faculty members routinely perform patient care, education, and research, and the petitioner 
has not shown that the Department of Labor will not approve labor certifications for medical school 
faculty positions. If the petitioner seeks employment outside of a medical school (or if no medical 
school seeks to employ him), then the petitioner would need to show how his intended employment 
would involve a combination of patient care, education, and research. A stated intention to combine 
those duties is not sufficient, because the petitioner's own intentions do not establish that 
employment opportunities exist which match those intentions. 
The petitioner stated that his "original research work has proven to be influential - his research has 
been accepted for presentation at esteemed scientific/medical forums and information used by later 
practitioners and researchers. " Conference presentation affords an opportunity for a researcher to 
influence the field, but the presentation is not, itself, evidence of that influence. The petitioner has 
not shown that he has influenced the field by, for example, creating or improving a medical 
procedure, or introducing new knowledge that affects the way other physicians diagnose or treat a 
given disorder. 
The petitioner claims to have held "leading roles with prominent institutions based on his 
demonstrated record of accomplishment." The petitioner's roles at hospitals in the United States 
have been as house staff, who are, by definition, trainees whose medical education is not yet 
complete. To assert that the petitioner held a leading role because he sup ervised lower-level trainees 
is unwarranted by the evidence. The petitioner has submitted no reliable evidence to show that his 
ongoing medical training has been anything other than routine, or that his involvement in research 
has exceeded what is expected of a physician training for a specialty at a university-affiliated 
teaching hospital. 
The petitioner described his ongoing research studying the effectiveness of granulocyte stimulating 
factor on necrotizing enterocolitis (NEC), "the most dreaded infection a neonatologist could dream 
of." A progress report in the record shows that the Food and Drug Administration approved this 
project in 2007, before the petitioner had begun working in the United States. This information 
indicates that the project would have taken place with or without the petitioner's involvement; the 
petitioner did not explain how his participation altered the outcome of the project. 
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The petitioner submitted letters from the parents of two former patients, expressing gratitude for the 
care that the petitioner provided for their premature infants. The value of the service that the 
petitioner provides to these families is not in dispute, but this value is inherent in his occupation. 
Physicians, including neonatologists, are subject to the statutory job offer requirement. Congress 
could have exempted all such physicians from the requirement, but instead they created a limited 
exemption for physicians in designated shortage areas and Veterans Affairs facilities, as described in 
section 203(b)(2)(B)(ii) of the Act. By limiting the parameters of the waiver in this way, Congress 
indicated that there is no blanket waiver for physicians or neonatologi sts. 
The director denied the petition on January 14, 2014. The director discussed the letters that the 
petitioner had submitted, and the petitioner's claims regarding the importance of his 
accomplishments. The director concluded that the petitioner had not provided evidence to support 
claims regarding the significance of his work or the extent of his reputation in the field. The director 
found: "The description of the self-petitioner's duties is more consistent with the simple tasks of 
training new medical students who may be doing their internship at his place of employment." 
On appeal, the petitioner does not specifically address the director's discussion of the record. The 
petitioner instead asserts that he previously submitted "substantial evidence demonstrating and 
establishing that he has distinguished himself from his peers and therefore should not be deemed 
subject to the labor certification process." The petitioner makes several unsubstantiated claims on 
appeal, such as: "Only the foremost members of his field have had their work presented at" the 
conferences he attended, and that "the medical community eagerly anticipates the results of 
[research] studies" now underway at 
The petitioner asks that we "take into consideration his unique roles within major academic teaching 
hospitals." The director addressed these roles in the denial notice, finding them to be within the 
expected duties of an advanced trainee. The petitioner does not address or rebut this finding, instead 
repeating the unsupported claim that the petitioner's role has been somehow unique or demonstrative 
of high standing in his specialty, rather than indicative of the status of an aspiring physician whose 
training in a particular specialty is not yet complete. 
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. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor. " Id. 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 
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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.