dismissed EB-2 NIW Case: Nephrology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-A-K-T-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a nephrology fellow at the time of filing, seeks classification as a member of the 
professions holding an advanced degree. See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is normally attached to this EB-2 immigrant classification. See 
section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification, when it is in the national interest to do so. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner 
established her eligibility as an advanced degree professional, but did not show that a waiver of the 
job offer requirement is in the national interest. Specifically the Director concluded that the 
Petitioner had not demonstrated the necessary influence in the field. 
The matter is now before us on appeal. In her appeal, the Petitioner notes that she not only performs 
clinical duties as a physician, but also performs research. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
normally requires that the individual's services be sought by a U.S. employer, a separate showing is 
required to confirm that a waiver of the job offer requirement is in the national interest. 
Section 203 (b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or 
Aliens ofExceptional Ability. -
Matter of J-A-K-T-
(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.['] 
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). 
Matter of New York State Dep't ofTransp., 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he or she seeks employment in an area 
of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that the proposed benefit will 
be national in scope. !d. Finally, the petitioner seeking the waiver must demonstrate that the 
national interest would be adversely affected if a labor certification were required by confirming that 
he or she 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, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to confirm prospective 
national benefit. Jd. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. !d. at 219, n.6. 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision ofthe Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Matter of J-A-K-T-
II. ANALYSIS 
The Petitioner obtained a doctor of medicine degree from the in the 
Philippines. She seeks to continue her work as a clinical and research physician specializing in 
nephrology. Accordingly , the Petitioner is an advanced degree professional. 8 C.F.R. § 204.5(k)(2) 
(definitions of advanced degree and profession). 
At the time of filing, the Petitioner's two main areas of research in nephrology included analysis of 
her employer's telemedicine program for veterans and desensitization protocols for renal transplants. 
Subsequently, the Petitioner reviewed the literature relating to the clinical care of pregnant women 
undergoing peritoneal dialysis and began investigating the gastrointestinal effects of curcumin in 
diabetic patients. 
The Director acknowledged that the Petitioner worked in an area of intrinsic merit and that the 
proposed benefits of her research, improving treatments for individuals with renal conditions, would 
be national in scope. At issue is whether the Petitioner has shown the necessary track record and 
influence to verify that it is in the national interest to waive the job offer requirement. 
On appeal, the Petitioner notes that research is not an expected or necessary duty of a physician . 
While true, the Petitioner's involvement in research forms the foundation of our conclusion that the 
proposed benefits of her work are national in scope. The fact that she is engaged in research, 
however, does not resolve the extent of her influence in the field. On this point, the Petitioner 
provided several letters, published scholarly articles, conference presentations, a small number of 
citations, and letters of appreciation for reviewing manuscripts. 
Prior to focusing on nephrology, the Petitioner authored a case report chronicling the diagnosis of a 
patient with Mitochondrial Encephalopathy Lactic Acidosis and Stroke-Like Episodes (MELAS). 
The first author of the article, of the confirms 
that the Petitioner was "a significant contributor and co-author" of the study, administering care to 
the patient, analyzing data, and writing the manuscript. concludes that the study "has 
proven valuable in the medical community, as MELAS is a rare but debilitating disease in need of 
more awareness, to ensure proper diagnosis in the future." The Petitioner documented that the case 
study garnered two citations. On appeal, the Petitioner notes that clinical research can have practical 
applications that are not typically reflected by citations in research articles. While the Petitioner's 
point is a valid one, it remains the Petitioner's burden to show a degree of influence beyond her 
immediate circle of colleagues. The record does not contain letters from independent clinicians 
explaining how they have incorporated her study into their institution's diagnostic guidelines or 
otherwise applied it in diagnosing or treating MELAS patients. 
Most of the letters focus on the Petitioner's analysis of the telemedicine program at the 
in the New York. The center shares 
medical staff with in New Y ark, where the Petitioner completed her 
fellowship. According to the appeal brief, the Petitioner "developed and implemented a 
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Matter of J-A-K-T-
telenephrology program" at The record does not support this statement. 
an associate professor at the hospital and an attending physician at the 
explains that, in April 2011, the center began employing videoconferencing technology to evaluate 
renal patients remotely in the He continues that the Petitioner, who 
joined in 2013, compiled and analyzed the data showing that this program 
reduced the rate of cancellations and missed appointments, saved gas expenses for patients, and 
slowed the rate of renal disease progression. As such, the Petitioner reviewed an existing program 
rather than developing and implementing one. an associate professor at 
and chief of the nephrology division at affirms that the Petitioner's 
"analysis of our telenephrology program has been critical to assessing this innovative program, 
which has provided remote clinical evaluations for nearly 100 unique patients with chronic kidney 
disease." Neither nor offers examples of other veterans or general clinics that 
have reviewed the Petitioner's evaluation in planning their own telemedicine program. 
The Petitioner did supply letters from practitioners in her specialty at independent institutions. None 
of these letters, however, identify an independent medical facility that has benefited from or 
otherwise reviewed the Petitioner's analysis of one telemedicine program. 
chief of the neurology division at the affirms that the 
Petitioner's research "is paving the way for the expanded implementation of the program for the 
treatment of other renal conditions, including serving veterans on hemodialysis and peritoneal 
dialysis." While he concludes that this study is critical to improving treatment and laying the 
groundwork for improved clinical practices, he does not list any examples of facilities that are 
reviewing the Petitioner's results when designing or implementing their own program. 
chief of the nephrology section at the 
states that the Petitioner's study "has been especially impactful in the area." 
While he further notes that her work is "applicable across the health care industry," and declares that 
it is "foundational to the implementation of telemedical programs nationwide and internationally," 
he offers no examples where the Petitioner's data formed the basis of another program beyond 
chief of the division of general internal medicine at the 
expresses his enthusiasm about the Petitioner's work, acknowledging that it is "in line 
with previous research verifying the benefits of telemedicine for helping patients requiring 
psychiatric, radiological, and obstetrics care." 
The letters confirm the importance and value of telemedicine, especially for veterans. Eligibility for 
the waiver, however, must rest with the Petitioner's own qualifications rather than with the position 
sought. See NYSDOT, 22 I&N Dec. at 218. It remains that the letters do not identify how the 
Petitioner's analysis of an existing program has influenced the use oftelemedicine programs beyond 
her employer. In response to the Director's request for evidence (RFE), the Petitioner's cover letter 
affirmed that the testimony demonstrated that she is "currently leading [the movement of the 
to develop improved telemedicine techniques to treat veterans 
across the country." The letter noted she was providing documents that substantiate the importance. 
oftelemedicine to the and the "direct impact of [the Petitioner's] work on expanding telehealth 
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Matter of J-A-K-T-
services throughout the system." The submitted materials show that other institutions, including 
facilities, are pursuing telemedicine studies, and that the 
and offer clinical 
video telehealth. These items, while establishing the use of 
telemedicine options at multiple facilities, do not corroborate that the Petitioner has influenced 
telehealth beyond her employer. They do not name the Petitioner, her study, or the results generally 
at as the basis of implementing programs at other locations. 
and also discuss the Petitioner 's research relating to renal transplants. 
Specifically, explains that the Petitioner "has been performing a meta-analysis of studies 
in the literature that describe various techniques for inducing desensitization to foreign tissue." 
According to the large number of individuals awaiting a kidney donation exemplifies 
the need for "a uniform protocol that can ensure kidney transplants are tolerated by patients' bodies 
with high success rates." offers a similar summary of the Petitioner's research in this area, 
concluding that it has "been crucial to overhauling the kidney transplantation process." He does not, 
however, provide examples of overhauls to the kidney transplant process and the Petitioner's 
contributions to those improvements. USCIS need not accept primarily conclusory statements. See 
1756, Inc. v. TheAtt'yGen. o.fthe US, 745 F. Supp. 9,15 (D.C.D. 1990). 
In response to the Director's RFE, the Petitioner supplied a letter from consultant 
and chair of general internal medicine, who confirms that the Petitioner completed "an 
unprecedented comprehensive and detailed review of literature related to clinical care of pregnant 
women undergoing peritoneal dialysis" that is pending publication. Also, decribed the 
Petitioner's assessment of curcumin on diabetic nephropathy. He concludes that these findings "are 
certain to yield highly valuable information that will aid the treatment of these afflictions." 
does not indicate that these studies have already had an influence in nephrology. 
Finally, the Petitioner provided correspondence corroborating her review of manuscripts, but did not 
show that this evidence is indicative of her influence in the field. While the record includes 
expressions of appreciation confirming that she participated in the process used by peer-reviewed 
scientific journals, they do not substantiate an influence in the field of nephrology as a whole. 
In summary, the Petitioner has participated in studies on valuable and important subjects, but the 
submitted letters do not explain how her results have been or are in the process of being used beyond 
her employer, nor does the record include other documentation demonstrating such use of her work. 
While the lack of a notable level of citations does not preclude eligibility, here the Petitioner has not 
provided sufficient evidence to document an influence on the field as a whole. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner in 
this case has not established by a preponderance of the evidence that her past record of achievement 
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Matter of J-A-K- T-
is at a level sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the Petitioner. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-A-K-T-, ID# 17663 (AAO Aug. 4, 2016)