dismissed EB-2 NIW Case: Neurosurgery

(b)(6)
DATE: FEB 0 1 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals 9ffice (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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO· inappropriately applied the law in reaching its decision, or you have additional 
information that you wish Lo have considered, you may file a motion to reconsider or' a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a !llotion can be found at· 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Pleas.e be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. . 
Thank you, 
~~~.·. 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: · The Director, Texas S.ervice Center, denied the employment-based immigrant visa 
petition. The matter is now before the Adi:ninistrative Appeals Office (AAO) on appeal. The AAO 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 neurosurgemi on the house staff at the 
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 es_tablished 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 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 ari 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 
increasing the number and proportion of visas for immigrants who would benefit the United States 
·~ economically andotherWise .. ; ." S. Rep. No. 55, lOt"st Cong., .1st Sess., 11 (1989). 
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Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 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·, o'r 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 Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Cornm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area: of substantial . 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner seeking the w.aiver must establish that the alien will serve the national interest to a. 
substanti~lly greater degree than would an available United States worker having.the ·same minimum 
. qualifications. 
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. The petitioner's 
subjective assurance that the alien . ~ill, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entiy of an alien with · no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The AAO also notes that the USCIS 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. . . I 
The petitioner filed the Form 1-140-petition on July. 29, 2011. In an accompanying statement, 
counsel stated: · 
[The petitioner's] expertise enables him to produceresearch that improves the clinical 
outcomes of patients suffering from a plethora of brain disorders such as tumors. His 
· research has been widely read and has even been cited by other medical researchers. 
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. [The petitioner] has contributed to a. textbook that is us.ed by physicians · 
throughout the country .... 
He has also published his findings in '------
one of the premier journals 
in the neurosurgery specialty. 
\ 
(Emphasis in . original.) · The petitioner's curriculum vitae, submitted with the petition, listed two 
published works: one book chapter and one journal article . The initial filing of 
the petition included no evidence that the petitioner's two published works have "been widely read" 
or "cited by other medical researchers." The unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.i (BIA 1988); Matter of Laureano, 
19 i&N Dec. 1, 3 n.2 (BIA 1983); MatterofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel stat~d: "According to renowned leaders in the field, [the petitioner] is established as an 
outstanding neurosurgeon who has advanced the field through his research and whose cliniqtl skills 
are virtually unmatched by others in his field." Coimsel did not identify the "renowned leaders" or 
quote any of their statements on the petitioner's behalf. The petitioner's ' initial submission contained 
no witness letters. Then!fore, counsel's assertion is another unsupported claim. 
Throughout the Qpening statement, counsel listed various (acts _about the petitioner's career as 
though they were self-evident proof of his standing in the field. For example, counsel stated "There 
is no doubt that [the petitioner] would not be employed at if he did not have top clinical 
abilities in his field" (emphasis in original.) Regarding one of the petitioner's research projects, 
counsel stated: · 
One of /the oetitioner'sl research loroiectsl received $164,748.00 in funding from 
~e The 
only awards $500,000.00 in funding each year. The fact that [the 
petitioner's} research project earned over 113 of the available funding is a testament 
to how important and novel the research is. 
(Emphasis in original.) The AAO notes·that $164,748 is slightly less than one--third of $500,000, not 
"over 1/3" as counsel asserted. More to the point, the funding of a given project demonstrates only 
that the project met the funding entity's criteria. The petitioner did 'not submit any evidence of those 
criteria, or even any evidence of the funding itself. The petitioner also failed to establish the average 
amount of a ·grant from the Without that information, it is 
not possible to draw conclusions from the amount of the petitioner's claimed grant. 
Counsel concluded that the petitioner "has contributed to the field and continues to do so through his 
novel research, something that most neurosurgeons cannot engage in as they have never been 
exposed to ' CoUnsel did not explain why "neurosurgeons cannot 
engage in" "novel research" unless they have "been exposed to ," nor 
did counsel support the claim that "most neurosurgeons" lack such training. 
Even if they . did, 
. . . I 
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Page 5 
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, 
while perhaps attractive· to the prospective United States employer, 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. NYSDOT, 22 J&N Dec. 
221 (footnote omitted). 
The director issued a request for evidence on February 10, 2012. The director quoted from counsel's 
cover letter (discussed above) and instructed the petitioner to submit evidence to meet the guidelines 
set forth in NYSDOT. · The director listed SOJ!le types of documentary evidence that would provide 
helpful information in this regard. 
Ti1e director specifically acknowledged counsel's claim that the petitioner "received the 
for his clinical performance." The director stated: "Any awards for work in the 
field must be accompanied by a statement from the institution -that granted the award, commenting 
on the number of awards given, the frequency of the award, the criteria for granting the award, and 
the number of individuals eligible to compete for the award." 
In response~ counsel referred to the petitioner's "award wimiing clinical skills," but the petitioner did 
not submit any new evidence about his claimed award. · 
Counsel stated that the petitioner "is one of the few neurosurgeons in the world who has experience 
with _ ~ . . .. with only a handful of centers in the entire world 
having access to such technology." Counsel identified no evidence to support this claim; news 
articles in the record indicate that the technique is experimental, and therefore not yet in widespread 
·use. Even granting counsel's claims, the scarcity of the skill is not inherently a basis for the waiver. 
If the skill is a basic job requirement, then it can presumably appear on -a labor certification. 
Furthermore, just because very few people know how to perform a given procedure does not 
necessarily mean that the procedure is especially difficult or requires a rare level of skill. If "only a 
handful of centers in the world hav[e] access to such technology," then it is to be expected that only 
a small number of surgeons will have been able to train on that equipment. As explained previous! y, 
an alien's training in existing technology does not presumptively qualify that alien for the national 
interest waiver. 
Counsel asserted that the petitioner's "contribution to the widely used text book" demonstrates "that 
he is an elite member of his field. Only a neurosurgeon of a very high caliber could contribute to a 
book that is used as a reference source by others in the field." Counsel cited no evidentiary support 
for the· claim that" the textbook is "widely used," or that "[ o ]nly a peurosurgeon of a very high caliber 
could contribute" to suc::h a textbook. The record contains a copy of the textbook chapter, but no 
chain of evidence showing how the petitioner came t~ co-write the. chapter. 
Counsel contended that "there is no 'doubt that [the petitioner] is known to leading experts from 
across the nation .... There is no doubt that [the petitioner] stands as one of the leading experts in 
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the field who has achieved sustained national acclaim for his work." The petitioner cannot sidestep 
the burden of proof simply by declaring emphatically that "there is no doubt" about his standing in 
the field. The outcome of the proceeding must rest on the evidence provided, not on counsel's 
interpretation of that evidence (or claims advanced with littie or no evidence). 
The petitioner submitted copies of two letters dating from July 2010, prepared in support of an 
earlier (denied) petition. associate professor at 
stated that the petitioner "has gained widespread recognition in the 
medical community for his expertise in performing minimally invasive neurosurgery and his expert 
management of critically ill patients." asserted that the petitioner is "also a cutting-edge 
physician scientist" whose research has been "very well received by ... neurosurgeons." 
contended that the petitioner "is considered one of the top neurosurgeons in the country," 
and asserted: 
[The petitioner] has been invited to be a member of some of the most prestigious and 
competitive medical organizations in the world. This impressive list includes the 
the 
- - -Membership in these organizations requires specific experience and expertise in one's 
field as well as significant research contributions to the field. The fact that the 
[petitioner] boast membership in theses [sic] highly esteemed, selective organizations 
is evidence of his superior reputation as an extraordinary neurosurgeon. 
The record contains no evidence from any of the associations named to show that membership is 
"competitive" or ''selective," or indeed to confirm the petitioner's membership. Absent such 
evidence, assertions are uncorroborated. 
assistant prOfessor at the stated that the petitioner 
''prominently stands out in the field of neurosurgery as one of the most experienced and 
extraordinary physician-scientists in the United States today." . asserted that the petitioner 
"has successfully performed over 800 surgeries without any complications, a truly extraordinary 
feat," and ·that "he is also known for producing clinical and scientific research that has furthered the 
neurosurgery field." Like made specific claims about the nature of the 
petitioner's work, but offered only generalities about its impact. Both witnesses contended that the 
petitioner is one of the top neurosurgeons ~orking in the United States today, a claim for which no 
evidence appears to exist except for letters written specifically to support the petition. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply· 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." /d. If testimonial evidence 
lacks ·specificity, detail, or cn!dibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of.Y-B-, 21 I&N Dec.l136 (BIA 1998). 
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Page 7 
-. 
The optmons of exp~rts in the field are not without weight and have received ·consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791; 795 (Comm 'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. /d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter ofV~K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 l&N Dec. 158, 165 
(Comm'r 1998) (citing MatterofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). The letters considered above contain assertions of acclaim and recognition, with no 
corroborating evidence to show that those assertions are credible. The witnesses made specific 
claims of fact which ought to be amenable to verification and evidentiary support, but the petitioner 
has not provided that support. The strategy, instead, has been to portray the petitioner's credentials 
as being so self-evidently impressive that no further evidence or inquiry should be necessary. 
In a new letter, dated April 24, 2012, associate professor at provided a 
positive but unremarkable 
recommendation letter for the petitioner: 
[The· oetitioner] has been a resident in the Deparunent of Neurosurgery at the 
J ~ He has performed his.duties in good standing with the utmost 
care and cpmpassion that one would ·expect from their physician. He conducts 
himself with integrity and honesty. 
While at the he has developed an expertis~ in I _ 
surgery. He independently conducted a preclinical study 
validating this novel technology against the contemporary intracerebral treatments 
utilizing gamma knife radiosurge -ry, radiofrequency _lesioning and deep brain 
stimulation. Additionally, he has assisted in our clinical trial of MR guided focused 
ultrasound thalamotomy for the treatment of medication refractory essential tremor 
which represents the first trial for the treatment of human movement disorders in the 
world.. [The petitioner's] expertise and contributions to these projects have been 
invaluable. 
did not specify the natw:e of the petitioner's involvement ih the clinical trial, but the 
assertion that he "assisted" does not impiy that the petitioner was responsible for initiating or 
designing the trial. It implies, instead, a more supporting role, and did not establish that 
others would have been unable to fill that role. An alien's joh:·related training in a new method, 
whatever its importance, cannot be considered to be an achievement or contribution comparable to 
the innovation of that new meth~d. NYSDOT, 22 I&N Dec. 221, n.7. 
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Furthermore, the clinical trial that mentioned appears to have begun after the petition's 
filing date. The initial submission included the petitioner's 9wn detailed list of claimed 
accomplishinents, and the clinical trial was not among them. · . An accompanying news article 
mentioned a patient who received the experimental treatment in August 2Qll, after the petition's 
July 29, 2011 filing date; results appear not to have been a,nnounced until several months latec 
(Several articles date from April 2012, indicating that the story was new at the time.) 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.F.R. § 103.2(b)(l). USCI~ 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 director denied the petition on July 27, 2012, noting that the petitioner had not corroborated a 
number of key claims regarding, for instance, awards received and the membership standards of 
professional aSsociations. The director acknowledged the petitioner's published work, but found that 
the petitioner had not established its imp~rtance or influence. · 
On appeal, counsel repeats the claim that the petitioner is one of "literally only a handful of 
neurosurgeons in the entire world" with "the ability to perform _ 
Surgery." The director had previously acknowledged the substantial intrinsic merit of advanced 
neurosurgery techniques. 
Counsel states that the petitioner "spends the vast majority of his time in the operating ro~m , " and 
therefore it is unfair to compare his publication record to that of "professionals who only engage in 
research." Provision of clinical care is, by nature, more restricted in its scope than the publication of 
research is; a publication can reach countless readers, whereas . a surgeon can only perform so many 
operations. For this reason, counsel had emphasized · the petitioner's published work when 
attempting to establish that the benefit from his work is national in scope. On· appeal, when 
confronted with the absence of evidence of the impact of that same published work, counsel seeks to 
downplay the research aspect of the. petitioner's work. (Nevertheless, in the next paragraph, coimsei 
maintains that the petitioner "is in the process of conducting cutting-edge research .") Counsel also 
claims that "publications that are geared towards improving clinical care are generally cited less than 
publications that are more academic in nature/' but offers no support for 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. 165. · . 
Counsel maintains that the petitioner "is considered an authority in the field as he has authored 
several chapters in widely used reference books .. ; . [O]nly the· foremost experts in the field are 
selected to contribute to them." The record establishes the petitioner's authorship of the chapters, 
but there is no evidence that the books are "widely used" or that "only the foremost experts in the 
field are selected to contribute to them." The evidence of authorship does not establish or imply 
either of these points. The· record shows that the petitioner has learned experimental techniques at 
but this training is not sufficient to support the full weight of a national interest waiver claim. 
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Page 9. 
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 
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 jhe 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. l}te petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
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