dismissed EB-2 NIW Case: Nephrology

identitying data deleted to 
prevent clearly unwananted 
invasion of pers~nzl privacy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER 
 Date: JUN 1 8 2009 
SRC 07 235 53077 
IN RE: 
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. 9 1 153(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. 
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. 5 103.5(a)(l)(i). 
pihen a:" 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 4 1153@)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a nephrologist, treating and researching diseases of the kidney. At the 
time she filed the petition, the petitioner was a clinical fellow at Boston (Massachusetts) Medical 
Center, affiliated with Boston University. She subsequently became a research fellow in 2008. 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 submits a brief from counsel. 
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 
Page 3 
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 regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services] 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. 
Matter ofNew York State Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 1998), 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. Next, it must 
be shown that the proposed benefit will be national in scope. 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. 
It must be noted that, whle the national interest waiver hinges on prospective national benefit, 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 
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. 
We also note that the regulation at 8 C.F.R. 5 204.5(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 offerllabor 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 petition on August 1, 2007. In a statement accompanying the initial filing, 
counsel stated: 
Many physicians limit their work to a small, limited clinical field; others focus on 
research. [The petitioner] is one of a select group of physician-scientists who works 
in both areas. . . . 
[The petitioner] has an extraordinary ability to treat and diagnose diseases of the 
kidney as well as perfonn a multitude of dialysis, radiology and specialized surgical 
procedures. In addition, [the petitioner] is vital to the care of post-kidney transplant 
recipients. [The petitioner's] expert specialization in temporary hemodialysis catheter 
placement, tunneled dialysis catheter placement, peritoneal dialysis catheter 
placement, kidney biopsy, and renal ultrasound, has made her an expert on the proper 
diagnosis and management of kidney diseases. Less than 5% of nephrologists in the 
United States are capable of performing such highly complex and delicate procedures. 
. . . [The petitioner] is also one of the leading physician-scientists in this field in the 
United States. . . . She has literally presented her innovative research to thousands of 
physicians throughout the world. 
Counsel went on at some length with repeated claims to the effect that the petitioner "is regarded as 
one of the foremost nephrologists in the nation today." The assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of laureano, 19 I&N 
Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). We must 
judge the record by the evidence it contains. From the present organization of the record, it appears that 
the petitioner's initial filing contained no documentary evidence at all; it contained only counsel's 
statement, the petitioner's curriculum vitae, and various forms. 
Counsel stated: "Please see attached Letters of Support from Independent Experts Nationwide. Please 
note that 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 she has not worked." Counsel did not quote 
from any of the letters, or identify any of the authors. We can find no letters in the record that 
accompanied the initial submission. 
Counsel stated "there is a growing shortage of experienced nephrologists and the need for nephrologists 
[is] on the rise." There exist special provisions for physicians in shortage areas, found in the statute at 
section 203(b)(2)(B)(ii) of the Act and in the regulations at 8 C.F.R. $ 204.12. The petitioner, however, 
has made no attempt to meet the evidentiary requirements for physicians in shortage areas, instead 
claiming a waiver under the more general guidelines set forth in Matter of New York State Dept. of 
Transportation. Under that precedent decision, a shortage of qualified workers is an argument for 
obtaining rather than waiving a labor certification, because the very purpose of labor certification is to 
demonstrate that qualified United States workers are not available. See Matter of New York State Dept. 
of Transportation at 21 8. 
On July 21, 2008, the director issued a request for evidence (RFE), stating that the record lacked 
documentary support for counsel's claims. The director specifically requested evidence regarding 
independent citation of the petitioner's published work, and information regarding the petitioner's 
recent research projects, as well as "documentary evidence which supports [counsel's] assertion" that 
"less than 5% of nephrologists in the United States are capable of performing" the procedures listed by 
Page 5 
counsel. The director also noted that counsel "stated that letters of support were included . . . but these 
were not found." 
In response, counsel stated: 
[Olfficial statistics as to the percentage of experts performing kidney biopsy [are] not 
available. Kidney biopsy remains however one of the most complex procedures in the 
field of nephrology which is why there is such a small number of experts capable of 
performing these types of procedures. The best evidence of thls are [sic] the letters from 
experts in the field attesting to the complexity of the procedure and the small percentage 
of experts capable of the procedure. 
The above assertion does not explain the source of the "5%" figure that counsel provided in the initial 
filing. If there are no "official statistics," then counsel could not provide a reliable percentage. 
With regard to the witness letters, several such letters accompanied the RFE response. All the letters 
are dated after the July 2008 issuance of the RFE, and so they clearly did not exist a year earlier when 
the petitioner filed the petition. Letters written in late 2008 cannot possibly have been the source for 
counsel's July 2007 claims. We conclude, therefore, that counsel's "5%" figure was baseless and 
arbitrary. 
Counsel additionally offered a number of arguments and claims relating to the evidentiary standards 
listed at 8 C.F.R. fj 204.5@)(3). However, these regulations pertain to a different classification, relating 
to aliens of extraordinary ability under section 203(b)(l)(A) of the Act. 
Letters from six witnesses, all in the northeastern United States, accompanied the petitioner's response 
to the WE. As with counsel's statement, the witness letters contain frequent uses of language that 
pertains to extraordinary ability petitions, which is not the classification that the petitioner sought in this 
proceeding. 
Half of the witnesses are Harvard Medical School faculty, on the staff of Brigham & Women's Hospital 
[The petitioner] is reputed as one of the top nephrologists in the United States and has 
been a pioneer in the field. . . . 
[The petitioner] is unique in the field of nephrology because she is a physician-specialist 
who can combine her clinical expertise with top-notch, rigorous academic research. For 
example, she has led pioneering research on the role of cPLA2-interacting protein 
(PLIP) on cell cycle. . . . Her research contributions are truly invaluable to the field as a 
whole. 
Page 6 
[The petitioner] has further distinguished herself by demonstrating extraordinary clinical 
and diagnostic abilities, not only in nephrology but also in cardiology. 
stated that the petitioner "is uniquely qualified to manage [kidney] 
transplant patients. . . . [The petitioner] is unique in the field of nephrology because she is a physician- 
scientist and has achieved the unique ability to combine rigorous academic research with vast clinical 
expertise." Several witnesses offer comparable assertions that it is almost unheard of for a clinical 
nephrologist to perform academic research. This is a testable claim, subject to documentary support or 
rehtation. The petitioner could, for instance, submit documentation to show that only a small number 
of the researchers who have published kidney research in the past few years are licensed, practicing 
physicians. The record, however, offers no documentary support for the claim that nephrologists rarely 
combine research with clinical practice. Repetition by witnesses does not make the claim more 
credible, because none of the witnesses has provided documentary or statistical evidence to support the 
assertion. 
called the petitioner "one of the top young academic nephrologists 
in the United States . . . and one of the world's pioneering researchers in nephrology." 
Boston University Professor 
 Chief of the Renal Section at Boston Medical Center, 
stated that the petitioner "currently stands at the very top of the field of nephrology," and that the 
petitioner is among "the most prolific researchers." 
- of Albert Einstein College of Medicine, where the petitioner worked from 
2004 to 2006, credited the petitioner with "some of the most innovative and significant research of our 
time." 
The only witness who does not work at an institution where the petitioner has trained is Assistant 
of Stony Brook University, who deemed the petitioner "one of a small 
group of the most talented nephrologists in the United States. . . . It is a well-known fact that [the 
petitioner] has distinguished her self as one of the most specialized nephrologists in the United 
States today." claimed no training or expertise in nephrology; his specialty is 
radiology. The record contains two letters from dated one day apart (October 6 and 7, 
2008). The letters are nearly but not entirely identical. - first letter indicated that the 
petitioner "is also Board Certified in Internal Medicine/Nephrology." That assertion is missing from 
the second letter. 
Significantly, in the RFE, the director had specifically requested evidence that the petitioner is, in 
fact, board certified. In response, counsel stated that the petitioner "was not board certified in 
nephrology at the time of filing of this petition." This wording implies that the petitioner later 
became board certified in nephrology, but the record contains no evidence of such certification. One 
of the petitioner's supervisors, Prof. Salant, indicated that the petitioner is board certified in internal 
medicine, but he did not claim that the petitioner is board certified in nephrology. If the petitioner 
was not board certified in nephrology whenrote that the petitioner was so certified, 
then letter contains inaccurate information and is, therefore, not credible. 
Apart from, who is not a nephrologist and whose credibility is questionable, all of 
the witnesses named above have worked with the petitioner. The record offers no objective support 
for their claim that the petitioner is well-known and deeply influential in her field. As noted earlier, 
an unsubstantiated claim does not become more credible or irrefutable simply by brute repetition. 
The petitioner submitted copies of only two articles that contain independent citations of her work, a 
very low total that does not readily suggest that she is, as witnesses have claimed, a particularly 
influential researcher. The petitioner submitted four other printouts that are identified as "citations" 
but are not citations. These claimed "citations" are search engine results and database printouts, 
rather than bibliographic references to the petitioner's work in published articles. 
A physician profile from HealthGrades identified the petitioner's specialty as "Internal Medicine," 
with no reference to nephrology. 
The remainder of the petitioner's submission shows that she is active as a physician and as a 
researcher, but does not establish the acclaim or influence that her colleagues in Boston and New 
York attribute to her. A January 28, 2008 letter refers to "an educational grant and stipend," 
indicating that Boston Medical Center considered the petitioner's education to be ongoing half a year 
after the filing date. 
The director denied the petition on November 7, 2008, stating that a shortage of nephrologists does 
not warrant a national interest waiver, and that the witnesses' claims, while emphatic, lack 
documentary support in the record. The director noted 
 erroneous assertion that the 
petitioner is board certified in nephrology, and counsel's frequent use of inapplicable language 
relating to aliens of extraordinary ability. 
On appeal, in the cover letter accompanying the appellate brief, counsel states that the "petitioner 
wishes to timely appeal the decision to deny her 1-140 [petition] for classification as an alien of 
extraordinary ability." Elsewhere on the same cover letter, counsel correctly refers to the petition as 
"EB-2 national interest waiver." The confusion continues in the brief itself, in which counsel 
correctly refers to "the national interest waiver petition" before devoting most of the brief to the 
extraordinary ability criteria listed at 8 C.F.R. 5 204.5(h)(3). The burden is on the petitioner to select 
the appropriate classification rather than to rely on the director to infer or second-guess the 
petitioner's intended classification. The Form 2-140 petition was clearly marked under Part 2 as a 
petition filed for classification as "[aln alien applying for a National Interest Waiver . . . ." and both 
the petitioner and counsel signed the Form 1-140. A request for a change of classification will not be 
entertained for a petition that has already been adjudicated. A post-adjudication alteration of the 
requested visa classification constitutes a material change. A petitioner may not make material changes 
to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). In addition, the Ninth Circuit has determined 
that once USCIS concludes that an alien is not eligible for the specifically requested classification, 
the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate 
classification. Brazil Quality Stones, he., v. Clzertofi Slip Copy, 2008 WL 2743927 (9th Cir. July 
10,2008). 
Furthermore, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for 
a single petition with a single fee. The initial filing fee for the Form 1-140 covered the cost of the 
director's adjudication of the 1-140 petition. Pursuant to section 286(m) of the Act, 8 U.S.C. 8 1356, 
USCIS is required to recover the full cost of adjudication. In addition to the statutory requirement, 
Office of Management and Budget (OMB) Circular A-25 requires that USCIS recover all direct and 
indirect costs of providing a good, resource, or service.' If the petitioner now seeks classification as 
an alien of extraordinary ability pursuant to section 203(b)(l)(A) of the Act, then she must file a 
separate Form I- 140 petition requesting the new classification. 
Counsel stated that, by learning new techniques and then teaching those methods to others, the 
petitioner is "creating a ripple effect in making the performance of these . . . procedures more 
widespread on a national level." The same can be said of anyone who learns a technique and then 
trains others. Therefore, this activity does not distinguish the petitioner from others in similar 
positions. 
Counsel stated that the petitioner's "research . . . has had a national impact as is evidenced by her 
prolific record of publication and presentation." The record contains nothing to show that the 
petitioner's publication history has been especially prolific in comparison to others in her field. 
Several of the witnesses' curricula vitae list page after page of published articles, whereas the 
petitioner has shown only a handful of articles. 
Counsel asserts that the petitioner "is indeed the type of unique physician scientist for whom the 
national interest waiver . . . was created." Counsel does not cite any legislative history to support the 
claim that Congress created the waiver with "physician scientists" in mind. The plain wording of the 
statute indicates that members of the professions holding advanced degrees are typically subject to 
the job offer requirement. When Congress amended the statute in 1999 to add a provision regarding 
certain physicians at section 203(b)(2)(B)(ii), there was no mention of "physician scientists." 
The remainder of counsel's brief relates to the petitioner's misplaced extraordinary ability claim. 
Because the petitioner did not request classification as an alien of extraordinary ability when she 
filed the petition, these arguments are off point here. As with the rest of this proceeding, counsel's 
arguments consist mainly of exaggerated claims with little or no documentary support, and inflated 
assertions regarding the evidence that the petitioner has submitted. 
As is clear from a plain reading of 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 
I See h~:l/www.whiteho~1se.~ovlomb/circulars/aO25laO25.htm1. 
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. 
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. 
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 appeal is dismissed.