dismissed EB-2 NIW Case: Neurology

MATTER OF S-J-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 29,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician specializing in neurology, 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 immigrant classification. See 
§ 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 
qualified for classification as a member of the professions holding an advanced degree, but that she 
had not established that a waiver of a job offer would be in the national interest. 
The matter is now before us on appeal. In her appeal, the Petitioner argues that she satisfies the 
national interest waiver requirements. 
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 establish 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 ofthe 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 
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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) National interest waiver. ... the Attorney General1 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, 101st Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 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 demonstrate 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 
establish 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 establish prospective 
national benefit. !d. 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. 
II. ANALYSIS 
The Director determined that the Petitioner qualified 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 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the 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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the job offer requirement, and thus a labor certification, is in the national interest according to the three­
pronged analysis set forth in NYSDOT. 
A. Substantial Intrinsic Merit 
At the time of filing, the Petitioner was training as a neurologist at 
in New York. The Petitioner submitted documentation showing that her work as a 
physician · specializing in neurology is in an area of substantial intrinsic merit. Accordingly, the 
record supports the Director's determination that the Petitioner meets the first prong of the NYSDOT 
national interest analysis. · 
B. National in Scope 
The Director found that the proposed benefit of the Petitioner 's work as a neurologist would not be 
national in scope. The Petitioner submitted a May 20 14 letter from 
professor and chairman of the department of neurology at and 
director of neurology and neurosciences at stating: "With her neurologic research during her 
residency at [the Petitioner] has made important contributions to Neuroscience 
literature." In his letter, offered several examples of the Petitioner's research work at 
In addition, and other references discussed the Petitioner's published 
and presented research fiQdings. Furthermore, since beginning her fellowship in neurocritical 
care at 
in the latter half 
of 2014, the Petitioner has continued to publish and present the results of her medical research. The 
submitted documentation shows that the proposed benefit of her neurology research has national and 
international scope, as the results from her work are disseminated to others in the field through 
conferences and journals . Accordingly, we find that the Petitioner meets the second prong of the 
NYSDOT national interest analysis, and the Director's detennination on this issue is withdrawn. 
C. Serving the National Interest 
It remains, then, to determine whether the Petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The Director 
determined 
that the Petitioner's impact and influence on her field did not satisfy the third prong of the 
NYSDOT national interest analysis. 
In addition to documentation of her published work, conference presentations, peer review activities, 
research projects, professional memberships, and medical training credentials, the Petitioner 
submitted various reference letters discussing her work in the field. For example, 
stated that the Petitioner "developed multimodality monitoring and treatment protocol in patients 
with severe traumatic brain injury (STBI), and reported that such a protocol can decrease mortality 
and increase survival by 25 percent," but did not provide any examples of how the Petitioner ' s 
approach has affected treatment practices at various medical centers or has otherwise influenced the 
field as a whole. 
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professor of neurology at stated: "As a clinician-
scientist, [the Petitioner] has presented her work at scientific meetings including the 
, . 
. [The Petitioner] has also published in respected journals in her field, 
including Regarding her published and presented work, there is no 
presumption that every published article or conference presentation demonstrates influence on the 
field as a whole; rather, the Petitioner must document the actual impact of her article or presentation. 
In this instance, there is no evidence showing that once disseminated through publication or 
presentation, the Petitioner's work has garnered a significant number of independent citations or that 
her findings have otherwise influenced the field as a whole. 
With respect to the Petitioner's finding that a mutation in the sodium channel can lead to myotonia, 
a geneticist at the and an affiliate of the 
noted that the Petitioner's finding "had not been reported before" and 
"adds significant data to the study of myotonias." Similarly, assistant professor 
of neurology at and chief neurointensivist at 
indicated that the Petitioner "is conducting research on traumatic brain injury" and that her 
work "will add significant data to current ongoing research on monitoring the effect of flow and 
oxygen crisis in patients with traumatic brain injury and on treating these patients emergently." 
Although the Petitioner's medical research has value, any research must be original and likely to 
present some benefit if it is to receive funding and attention from the medical or scientific 
community. In order for a university, publisher or grantor to accept any research for graduation, 
publication or funding, the research must offer new and useful information to the pool of knowledge. 
Not every neurology fellow who performs original research that adds to the general pool of 
knowledge in the field inherently serves the national interest to an extent that is indicative of 
influence on the field as a whole. 
and also mentioned that the Petitioner is a peer reviewer for 
and Regarding the Petitioner's services as a peer reviewer, it 
1s common for a publication to ask multiple reviewers to review a manuscript and to offer 
comments. The publication's editorial staff may accept or reject any reviewer's comments in 
determining whether to publish or reject submitted papers. Thus, peer review is routine in the field, 
and there is no evidence demonstrating that the Petitioner's occasional participation in the widespread 
peer review process is an indication that she will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications. 
In addition, indicated that the Petitioner's "work regarding varicella zoster ... is original 
and ground breaking, and would be very important in shedding new light on· an important clinical 
issue and in doing so will lead to improvement in patient care." Furthermore, regarding the 
Petitioner's research concerning the role of fetal stem cells in maternal cardiac care, 
assistant professor of neurology, noted that the Petitioner's "original and pioneering 
work could lead to the development of innovative stem cell therapies to treat cardiovascular 
diseases." While and attested to the potential impact of the Petitioner's work, 
they did not offer any examples indicating that her work has already impacted medical practices or 
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has otherwise influenced the field as a whole. A petitiOner cannot file a petition under this 
classification based on the expectation of future eligibility. Eligibility must be established at the time 
of filing. 8 C.P.R. § 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
also noted that the Petitioner authored an oral presentation entitled 
The Petitioner's aforementioned presented work proposed that a goal-directed 
multimodality monitoring and therapeutic protocol may prevent and treat 
secondary brain injury, and 
improve patients' outcome. Regarding the protocol, stated: "This novel technique 
showed a 32% reduction in mortality in patients with severe traumatic brain injury." 
added that the Petitioner's colleagues at carried on the work and published a later study in 
but the Petitioner was not a coauthor of the later study. There is no 
evidence demonstrating that the Petitioner's work has affected diagnostic or treatment protocols for 
brain injury patients at various medical centers, has been frequently cited by other investigators in 
their medical research, or has otherwise influenced the field as a whole. 
With respect to the documentation reflecting that the Petitioner has presented her findings at 
neurology meetings and medical 
conferences, we note that many professional fields regularly hold 
meetings and conferences to present new work, discuss new findings, and to network with other 
professionals. Professional associations, educational institutions, . healthcare organizations, 
employers, and government agencies promote and sponsor these meetings and conferences. 
Although presentation of the Petitioner's work demonstrates that she shared her original findings 
with others, there is no documentary evidence showing, for instance, frequent independent citation 
of her work, or that her findings have otherwise influenced the field of neurology at a level sufficient 
·to waive the job offer requirement. 
assistant professor of neurology, mentioned 
that the Petitioner "has produced innovative research that has advanced our understanding of 
traumatic brain injury, myotonia, varicella-zoster virus, and cardiovascular diseases," but did not 
provide specific examples of how the Petitioner's findings have altered assessment and treatment 
procedures in the medical field or have otherwise had an impact on the field of neurology. In 
addition, indicated that the Petitioner has demonstrated "superior ability to perform 
innovative diagnostic and treatment procedures" and that she "has successfully applied these 
procedures to treat patients." A statement that a petitioner possesses useful ·skills or experience 
relates to whether similarly-trained workers are available in the United States and falls under the 
jurisdiction of the U.S. Department of Labor through the labor certification process. See NYSDOT, 
22 I&N Dec. at 221. 
program director of the vascular neurology fellowship at 
stated that she and the Petitioner "are in the process of publishing the first-ever case report of 
was not exposed to chemotherapy." In addition, explained that the "novel case report will 
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raise awareness of impaired immunity in these patients." The Petitioner's case report, while 
original, was unpublished at the time of filing the Form 1-140, and there is no evidence reflecting 
that other neurologists have implemented any of the Petitioner's findings or that her work has 
otherwise influenced the field as a whole. 
Furthermore, professor and chairman of the department of neurosurgery, 
noted that the Petitioner performed research that measured brain oxygen requirements and that she 
studied brain metabolism in instances involving stroke and trauma. added: "The early 
results of this work are promising enough that further studies in a controlled setting are already 
under way at our medical center and we are very hopeful that this will become standard practice in 
the near future." did not offer any examples of how the Petitioner's work has altered the 
practices of other neurologists or has otherwise affected the field. While the record includes 
numerous attestations of the potential impact of the Petitioner's work, none of the references 
identified specific evidence indicating that her work has already influenced the field as a whole. 
On appeal, the Petitioner provides a personal statement listing her medical experience, training 
qualifications, research activities, instruction of students, and honors, but as indicated above, there is 
no documentary evidence showing that her work has affected the field of neurology as a whole. The 
Petitioner mentions her article in entitled ' 
describing it as a significant contribution to the field, but 
she did not submit any corroborating documentation to support the claim. In addition, the Petitioner 
indicates that her work has been presented at "prominent" and "influential forums." With regard to 
her journal articles and conference presentations, a substantial number 'of favorable independent 
citations for an article or presentation is an indicator that other researchers are familiar with the work 
and have been influenced by it. A lack of citations, on the other hand, is generally not suggestive of 
the work's impact in the field. In this case, there is no evidence demonstrating that the Petitioner's 
research findings have garnered a significant number of independent citations or that her work has 
otherwise affected the field as a whole. 
The Petitioner contends that the "testimonials from peers" are "primary evidence of her elite clinical 
skills." The Petitioner mentions her ''unique" and "critical" roles "within major academic teaching 
hospitals." With respect to the Petitioner's hospital duties and clinical skills as a physician and 
neurologist, any objective qualifications that are necessary for the performance of the occupation can 
be articulated in an application for labor certification. See NYSDOT, 22 I&N Dec. at 220-21. The 
testimonial letters discussing the Petitioner's medical skills and research projects have already been 
addressed above. Again, the submitted evidence does not show that the Petitioner's work has had an 
impact on the field as a whole as to warrant a waiver of the job offer. Regarding the Petitioner's 
neurology fellowships, house staff appointments, and medical residency training, there is no 
indication that the Petitioner's roles had an impact beyond the patients and staff at her hospitals. 
Furthermore, there is no evidence showing that the Petitioner's work as an evaluator, teacher, or 
clinician has influenced the field as a whole. 
The Petitioner submitted letters of varying probative value. We have addressed the specific 
affirmations above. Generalized conclusory assertions that do not identifY specific contributions or 
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their impact in the field have little probative value. ld. In addition, uncorroborated statements are 
insufficient. See Visinscaia v. Beers, 4 F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' 
decision to give limited weight to uncorroborated assertions from practitioners in the field); See also 
Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (holding that an agency "may, in 
its discretion, use as advisory opinions statements ... submitted in evidence as expert testimony," 
but is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought and "is not required to accept or may give less weight" to evidence that is "in any 
way questionable"). The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the petitioner's eligibility. ld. See also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting 
that expert opinion testimony does not purport to be evidence as to "fact"). As ·the submitted 
reference letters did not establish that the Petitioner's work has influenced the field as a whole, they 
do not demonstrate her eligibility for the national interest waiver. 
III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
Petitioner's work has influenced the field as a whole or that she will otherwise serve the national 
interest to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. The Petitioner has not shown that her past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification she seeks. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. Although a petitioner need not demonstrate notoriety on the scale of national 
acclaim, she must have "a past history of demonstrable achievement with some degree of influence 
on the field as a whole." !d. at 219, n.6. 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 appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-J-, ID# 17475 (AAO July 29, 2016)