dismissed EB-2 NIW Case: Neurosurgery

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, 
. ! 
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 
DATE: OFFICE: TEXAS SERVICE CENTER FILE: 
MAR 1.8 2013 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pur~uant 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 fmd 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 ori~inally decided your case. Please be advised 
that any further inquiry that you 
might have concerning your ca
1
se must be made to that office. 
If you believe the AAO inappropriately applied the law m ~ching its decision, or you have additional 
information that you wish to 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 ~ppeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found a't 8 C.F.R. § 103.5. Do not file any motion 
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directly with the AAO. Please be awarethat 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 rebpen. 
Thank you, 
• 
Ron Rosenberg 
.Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, deaied the employment-based· immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal The AAO 
will dismiss the appeal. I 
The petitioner seeks classification under section 203(b)(2) ~fthe Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the profe~sions holding an advanced degree. The 
petitioner seeks employment as a neurosurgeon. The pet~ioner is a neurosurgery resident at 
a teaching hospital of the Florida 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 thcl petitioner qualifies for classification as a 
member of the professions holding an advanced degree, bu't that the petitioner has not established that 
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an exemption from the requirement of a job offer would be in the national interest ofthe United States. 
On appea~ 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 dbgrees or their equivalent or who 
because oftheir 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 scibnces, 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 ofJubparagraph (A) that an alien's 
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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 thb 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 tlie term "national interest." Additionally, 
Congress did not provide a specific definition of "in the hational interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the cbmmittee had "focused on national interest 
by increasing the number and proportion of visas for immibants who would benefit the United States 
economically and otherWise .... " S. Rep. No. 55, 101st Corig., 1st Sess., 11 (1989). 
. I . - . 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: I 
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The Service [now U.S. Citizenship and Immigra ion Services (USCIS)] believes it 
appropriate to leave the application of this testj 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 tfie "prospective national benefit" 
[required of aliens seeking to qualify as "exceptipnal."] The burden will rest with 
the alien to establish that exemption from, or waiver ot: the job offer will be in the 
national interest. Each case is to be judged on its ~wn merits. 
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ln reNew York State Dept. of Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considerbd when evaluating a request for a national 
mterest 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 establish that the alien will Jerve the national interest to a substantially 
greater degree than would an available United States worket having the same minimum qualifications. 
While the national interest waiver hinges on prospective nltional benefit, the petitioner must establish 
that the alien's past record justifies projections of fuWre benefit to the national interest. The 
petitioner's subjective assurance that the alien wil~ in th~ future, serve the national interest cannot 
suffice to establish prospective national benefit. The int~tion behind the term ''prospective" is to 
require future contributions by the alien, rather than toj facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
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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 ~ member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver jrlst by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or hclr field of expertise. 
The petitioner filed the Form I-140 petition on February 1, 2012. ·The initial submission included a 
statement from the petitioner. The petitioner appears to have prepared the statement by following a 
template. Parts of the template, not completed, remain in the statement. A passage on pages 13-14 
reads, in part: 
24. Important ongoing result 
25. 1-2 paragraph about research· 
All of them sighting [sic] the superior ability and tne morbidity and mortality of these 
problems - SCI and CDC citations 
How this work is beyond others 
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Lab skills in details and how rare they are and how essential they are for re~earch 
List of special lab skills 
How the research is original 
How it is unique 
How I am the first to do it 
Page 5 shows another list of topics, comparable to that shown above. Most significantly, another 
passage on page 14 reads: 
Describe the duties and responsibilities 
Do not use junior resident - present as a full time house staff 
I work as the full time house staff in the department of Neurosurgery at 
hospital. ... 
. The above passage strongly suggests that the petitioner is a ·punior resident" at the • . . 
Otherwise, the advice to avoid the phrase ')uniQr resident" would be superfluous; there 
would be little need to advise the petitioner not to use a job t!itle that he does not, in fact, hold. 
In a statement accompanying the petition, counsel stated: 
[The petitioner's] role as a spine surgeon extends qeyond merely attending to a small 
community of patients in research and clinical settings. The expansive scope of [the 
petitioner's] salient contributions enco,mpasses not! only his immediate field of nuero/ 
[sic] spine surgery, but also the medical community at large both nationally and 
internationally. His original research has already hkct a direct impact on the field and 
has gained him international recognition. Throhgh his various publications and 
presentations, [the petitioner] is not only reaching ~ large and distinguished audience, I . 
but he is in fact reaching countless leading specialists in: the field throughout the 
country and even the world. He is thus having a brofound and direct impact on the 
medical field. 
Counsel stated that the petitioner has published his research in journals and presented it at 
conferences. Counsel·correctly asserted that this dissemfuation of research work provides benefits 
that are national in scope. This work, however, will prospectively benefit the United States only if 
the petitioner continues to perform research.. Research c6nducted in the context of graduate study 
or training is, by nature, time-limited and not necessaril~ indicative of the student's or trainee's 
future career trajectory. The burden is on the petitioner toj establish that he will continue to perform 
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research after he has oompleted inherently temporary training assignments such as his house staff 
posting at · ' 
The petitioner submitted copies of his published articles. Researchers are expected to· make their 
results available, via either publication or presentation. Participation in this dissemination is not, 
itself: evidence of eligibility for the waiver. Therefore,j it is necessary to examine documentary 
evidence to establish the extent to which the petitioner's work has attracted attention and influenced 
others in the field. 
The petitioner submitted partial or complete copies of several articles by other researchers. Seven 
ofthe articles show citations to one of the petitioner's artitles, "published in 
_ in 2008. Three of the citing articles ~e either in a foreign language with no 
translation, or are incomplete and do not show the context of the citation. Other fragmentary 
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articles do not show citations of the petitioner's work at aH. It is significant that the article does not 
report original medical research by the petitioner. Rathef, the article is an overview of previously 
published work by others. The "Methods" section of tpe article (on page A223), in which the 
researchers described how they gathered the information for the article, did not describe any clinical 
or laboratory work. Instead, that section reads, in full: 
We performed a detailed search in PubMed and MEDLINE for the genetic markers 
of scoliosis using the key words scoliosis, geAetic markers, genes, and spinal 
deformity. A broad range of articles were revie~ed and the relevant publications 
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that contributed information regarding the genetics of scoliosis were selected for 
inclusion in this report. 
All of the petitioner's documented citations stem from this one article, which is about genetics 
rather than neurosurgery, and which amounts to a discus~ion of existing literature. The petitioner 
has not shown that his compilation of past articles has ~ffected the practice of neurosurgery in a 
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manner that is independent of the collected articles themselves. 
In terms ofthe petitioner's clinical practice of medicine, junsel stated: 
[The petitioner] frequently diagnoses. and perflrms surgeries on patients from 
different parts of the country on referral. He has Jrorked at tertiary facilities that are 
constantly referred patients from various regions tHroughout the country. Because he 
is able to perform such advanced procedures that dnly a very· small percentage of his 
peers are able. to perform, he is called on to treat !patients from around the country. 
In addition, he is constantly teaching the use o:f the surgical techniques he has 
mastered to both junior and even senior peers, as Juch creating a ripple effect that is 
making the performance of these procedures more kidespread nationally. 
The above claims lack evidentiary support, as well as detlils that would permit verification. AB fur 
the claimed "ripple effect" of teaching "advanced procedcl-es," the petitioner does not claim to have 
invented or significantly improved these procedures. Pk alien's job-related training in a given 
procedure, whatever its importance, is not an achieve~ent or contribution comparable to the 
innovation of that new method. See Matter of New Yor~ State Dept. of Transportation, 22 I&N 
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Dec. 221 n.7. The basic claim appears to be that, having learned advanced procedures himself: the 
petitioner can now teach them to others~ Counsel did not explain how this distinguishes the 
petitioner from other medical students who, like the petitioner, take on some te~ching duties even 
while completing their own professional training. Also, ~ounsel did not explain why credit for the 
"ripple effect" should go to the petitioner ra~her than to hiJ teachers, or their teachers before them 
Counsel stated: 
In the labor certification process, the Department ·of Labor stipulates that the 
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employer describe its job opportunity without j'un~uly restrictive" requirements 
[22 C.F.R. sec. 656.2l(b)(2)]. The employer's ·r~urrements must conform to the 
standard job classifications set forth in the Dictiodary of Occupational Titles and the 
requirements must be those normally required for the job in the United States. These 
conditions fall short in consideration of the naturb of [the petitioner's] work in the 
operating room, because the factors relating to thiJ scientific technique transcend the 
"context" of any specific employer's "business" o~eration .... establishing ''business 
necessity" for ''unduly restrictive" requirements fs outside the scope of the instant 
petition. As a highly skilled surgeon, [the petitioner] is directly responsible for 
saving lives. Such skills cannot be measured in th~ context ofbusiness necessity. 
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Chapter 22 of the Code of Federal Regulations deals with j'Foreign Relations"; there is no 22 C.F.R. 
§ 656. Counsel apparently meant to cite the regulation at 20 C.F.R. § 656.21(b)(2), which deals 
with labor certification. Though subsequently revised, thkt regulation used to read: "The employer 
shall document that the job opportunity has been and is tleing described without unduly restrictive 
job requirements." The reference to "business necessity'' appears to relate to the former regulation 
at 20 C.F.R. § 656.21(b)(2)(ii), which read: 
If the job opportunity involves a combination of duties, for example engineer-pilot, 
the employer must document that it has nodally employed persons for that 
combination of duties and/or workers customarily ~erform the combination of duties 
in the area of intended employment, and or the cotbbination job opportunity is based 
on a business necessity. 
The regulation mentioned ''business necessity'' specificaHy in relation to a combination of duties, 
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which the petitioner has not claimed in this proceeding. Oolinsel did not explain how surgical skills 
"camiot be measured in terms of business necessity," wften an employer that provides or teaches 
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neurosurgery can presumably require its job applicants to have certain necessary skills in that area. 
Counsel cited a decision by the Board of Alien Labo~ cLification Appeals (BALCA) to support 
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the claim that a labor certification application for the petitioner would likely be denied as ''unduly 
restrictive." The inability to obtain a labor certification ~ould not, by itself: be a deciding factor in 
the petitioner's favor. The wording of the statute makes it clear that exemption from the job offer 
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requirement rests on the national interest, not on an alienjs inability to obtain~ labor certification. 
Even so, the cited materials do not strongly support counsel's assertions. In the cited administrative 
decision, BALCA ruled: I 
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This Panel fmds the unqualified term "artistic aoility" to be vague and subjective 
without any guidelines or criteria available to dbtermine whether an applicant is 
qualified for the position. Accordingly, the specidl requirement of artistic ability is 
unduly restrictive under §656.21 (b )(2), because th~ Employer has rejected otherwise 
qualified U.S. workers based on this vague, subjective requirement. 
Michael Graves Architect, 89-INA-131, 1990 WL 300112 (Bd. Alien Lab. Cert. App. Feb. 21, 
1990). BALCA found that "artistic ability" is subjective and difficult to "quantify ... in terms of 
length of training or experience." Jd. Counsel sought ~o compare the vaguely-defined "artistic 
ability'' in Michael Graves to the present petitioner's "ability to master state-of-the-art technologies 
and complex research techniques," and contend¢ that thb petitioner's "scientific ingenuity cannot 
be quantified because his extraordinary skills are conthlgent upon his specialized knowledge in 
neurology, and his skills in the operating room" Cofnsel did not explain how "specialized 
knowledge" correlates to "scientific ingenuity." If the petitioner did not, himself, innovate the 
techniques he uses, but instead learned them in the course 'of his own education, then his knowledge 
of those methods is not a matter of "ingenuity" ( defuied as "inventive imagination or skill"). . I 
Webster's II New College Dictionary 569 (2001 ). Special or unusual knowledge or training, while 
perhaps attractive to the prospective U.S. employer, doe~ not inherently meet the national interest 
threshold. NYSDOT, 22 I&N Dec. 221. 
Counsel claimed: "Only the very best physicians become surgeons and only the very best surgeons 
have the requisite skill and innate ability to operate on s~mething as complex and delicate as the I . 
brain and spine" (counsel's emphasis). Counsel's claim relies on a number ofunproven assumptions, 
such as the contention that there is a skill-based hierarchy iof medical professions. The unsupported 
assertions of counsel do not constitute evidence. See 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). 
Counsel stated: 
[The petitioner's] contribution to a chapter in the book ' 
· ' 
- which! is a widely used reference too~ 
should be considered a significant contributions [sic] as hundreds of spine surgeons 
throughout the country refer to it before approaclling a specific case, and it is also 
used in training programs throughout the country .... 
[The petitione.r's] research has already changed the way many surgeons practice 
medicine and approach certain clinical issues. Please see testimonials. 
(Counsel's emphasis.) The petitioner submitted six wiJness letters. Counsel claimed that "the 
support letters ... show that [the petitioner] is one of the dtost talented neurosurgeons in the world." 
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Three of the six letters are from individuals on the faculties of universities that have trained the 
petitioner. chairman of the Depbment of Neurological Surgery at the 
~~ed= I 
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[The petitioner] has distinguished himself ... through his outstanding clinical work 
and cutting-edge research studies. He is an impoftant asset to our institution and to 
the American medical community because of his outstanding clinical abilities, and 
superior ability to educate others. 
[The petitioner] has developed a stellar reputation in our institution for his quick 
thinking in clinical emergencies .... 
[The petitioner] is not only instrumental in providing all aspects of medical care, but 
also teaches complex medical procedures to intebs, physicians, medical students, 
and other allied professionals .... 
Currently, [the petitioner] is involved in a study on heat shock proteins, clinical trials 
for the brain and spinal cord tumor, Glioblastom~ Multiformae .... The patient's 
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tumor is transformed into antibodies and injected back into the dermis of the skin to 
stimulate antibodies against the tumor cells. Thi~ is the phase III clinical trial and 
[the petitioner] is one of the key role players in this study. This study promises to 
revolutionize the treatment of this devastating tumbr and increase the life expectancy 
dramatically. · In addition, [the petitioner] Jas also involved in providing 
hypothermia to post operative patients who. have1
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untoward and devastating spinal 
cord injury. . , . According to this study, the patients who have received this 
treatment have recovered well and improved significantly based on the American 
. spinal cord injury assessment (ASIA) scale. 
The assertion that the petitioner "is involved" in the above projects does not explain the nature of 
that involvement, or to what extent the petitioner is responsible for the inception of the studies. 
Furthermore, the preliminary results that 4escribed do not show wider impact or 
implementation. It is too early to tell whether is correct in claiming that a still-ongoing 
study will "revolutionize" 
cancer treatment. I 
also of the . praised the petitioner's "superior skills 
in ... his treatment of a patients [sic] suffering from chrbnic intractable pain .... [The petitioner] 
has been performing spinal cord stimulator on these pati¢nts. . . . Very few neurosurgeons in the 
entire country have proficiency in this technique." . ·added that the petitioner "has 
often correctly diagnosed rare and serious conditions thai other even more experienced physicians 
miss," but did not 
elaborate. J 
of the _ :where the petitioner was a resident in 
2009-2010) stated that he has ''personally been influented" by the petitioner's published work. 
also stated: 
Because of [the petitioner's] unique abilities as a physician scientist and his superior 
abilities to perform minimally invasive neurosurgery, he is combining his skills to 
develop new clinical techniques for treating . ·I· complications that result from 
traditional aneurysm treatments .... The most common complication of this 
procedure is coil herniation, where the coil [insdrted into the aneurysm to trigger 
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clotting] slips out of the aneurysm and blocks t~e main vessel leading to lack of 
blood supply to the area of brain supplied by that artery. This leads to serious 
complications. such as stroke. [The petitiol!er's] study proposed the novel use of 
is a minimally invasive catheter-based 
system designed to retrieve and remove clots in patients experiencing acute ischemic 
stroke. [The petitioner] and his team further bxtended this system to retrieve 
herrtiated coils instead of what is currently being u
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sed. His proposed method has the 
following ·advantages: Endovascular science is ~an ever growing field where the 
treatment has been constantly evolving. device is an effective tool to the 
coil herniation retrieval systems. It is more usefui as the endovascular surgeons are 
familiar with its use in the clot retrieval. The prbliminary results of this study are 
already intriguing and I am excited to see the final ~esults of[the petitioner's] study. 
of is the inly other witness to discuss the project: 
As a neurosurgeon with over twenty-one yeJs of experience, I find myself 
constantly adapting my clinical work to reflect tesults produced by breakthrough I . 
studies. [The petitioner's] 2010 study' _ 
is one such study that has influenbed my clinical practice .... In [a 
2010] paper [the petitioner] has extended [the de~ice's] application to retrieve the 
As the endovascular workers are familiar with this as a clot retrieval 
device, it's [sic] application in herniated coil retriefal will be applied more often and 
it is a very good addition to the ever growing endoyascular science. Since I observed 
the results of this study at the I have begun 
using the device with greater frequency
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and have seen a greater rate of 
successful clinical outcomes. 
chairman of neurosurgery at the in Ohio, stated: 
[The petitioner] is an accomplished minimally intasive spine surgeon. . . . He has 
contributed to one of the most widely used refe~ence books in the field of spinal 
surgery - ' _ _ _ 
He is certainly in the top echelon of spine· speciklists in India. [The petitioner's] 
publications have helped advance the spinal surgerY field. · 
provided f'ew details to support the fairly geJeral claims in his letter, and he cited no 
evidence that is "one of the most widely red reference books in the field." 
associate professor at stated that the 
petitioner "has truly distinguished himself from other neu~osurgoons because of his rare expertise in 
research of spinal cord injury and spine surgery .... His surgical abilities in creating a reproducible 
spin~l cord inj_ury mode ~ rodents is extreme!~ impo.rt~tlto the sci~nce community as it allows for 
studtes on vanous theraptes to be conducted wtth obJecttv.e compartson." whose 
own specialty involves "Biomechanical mechanisms of anticancer drug resistance," claimed no 
particular expertise in spinal cord injury or spinal surgery. 
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The director issued a request for evidence on June 2, 2012. The director quoted from some ofthe 
witness letters, but found that "[t]he statements are vaguejand give every little detail about how the 
petitioner's work and expertise has made an impact [on] tlie field." 
In response, counsel stated that the petitioner's "reselch has been presented across multiple 
esteemed forums, and has been recognized for its influeJce, as evidenced by the two-dozen peer-
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reviewed publications and national conference presentations his work has been rewarded with." 
This is a circular claim; journals and conferences are, t~emselves, the "multiple forums" through 
which the petitioner has presented his work. Counse~ !therefore, contends that the articles and 
presentations are evidence of their own influence. Such presentations and articles present an 
opportunity to influence the field, but they do not, thems
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elves, show that the petitioner's research 
"has been recognized for its influence." 
The petitioner submitted another citing article, published in __ __ _ 
in 2012. This article, unlike the other citing articles, did not cite the petitioner's 2008 
article. Instead, it cited a 2011 article !&om The citing 
passage-, ~h-o_w ..... ever, stated that the petitioner and his coaut~ors "conducted a retrospective review of 
the available literature, finding no clear evidence for inlproved outcome with surgical treatment 
versus serial observation." The "Methods" section of the ~etitioner's article reads: 
A PubMed search was performed to include all relevant MR imaging studies in 
which management of suspected incidental LGG j"'as reported. Comparisons were 
made between the surgical treatment arm and the active surveillance arm in terms of 
outcome, mode of discovery, reasons for treatment! and histology. 
Therefore, the newly submitted citation, like th~ others, !relates to the petitioner's "review of the 
available literature" rather than any novel finding. 
The petitioner submitted a printout from the web site of Quality Medical Publishing, Inc., 
describing the textbook (mentioned ~reviously) to which the petitioner had 
contributed. Counsel stated: ''The fact that he was asked to and authored a chapter in this book is a . . I 
testament to his recognized expertise in the field, clear evidence of his ability to influence the field 
more than his colleagues. Please take into consideration ~he 'key features' description of the book 
on the publisher's website, referring to the authors as 'leading experts."' 
The printout from the publisher's web page amounts to prlmotional advertising for the book, rather 
than a disinterested assessment of its merits. Therefore, thb page's references to the authors (always 
collectively, never specifically naming the petitioner) as "lbading experts," "A Who's Who of Spine 
Surgery'' and ''world-renown~ experts," and the book asi"A Virtual Gold Mine" and "a landmark 
publication," have little weight as objective evidence. A Sfholarly publication can have tremendous 
influence, but the publication's very existence is not, itselfj evidence of impact on the field. 
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The petitioner submitted two further witness letters. _ is an assistant professor at 
the . , -tvhere the petitioner trained from 2007 to 
2009. asserted: I 
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I can state with confidence that [the petitioner] is one of the nation's top 
neurosurgery specialists with additional super-spebialization in the field of complex 
spine surgery. · 
I would like to bring to attention two of the major ground breaking publications 
which is [sic] very relevant to my practice. ''Thb elevated BMI and risks of CSF 
Rhinorrhea after transsphenoidal surgery'' is a vety novel study which explains the 
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effect of obesity on outcome of neurosurgical patients .... This study has certainly 
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influenced my· practice, as I now approach wound closure very aggressively when I 
encounter CSF leaks during surgery in obese patibtts. This preventive measure has 
significantly reduced the hospital stay and saved keveral hours of labor and .dollars 
for the country. 
The second article discussed concerns the previ~msly discussed use of the Merci device to 
retrieve herniated coils. ·stated: "I have used this modality several times in my own 
practice t~ retrieve herniated coils." The petitioner's res~onse to the request for evidence included 
his article. ' 
Jublished in t The article stated: ''The Merci 
Retriever device can be utilized successfully for rerhoval of migrated coils and stents in 
endovascular surgery," and described three successful in~tances of such removal. The article did 
not, however, indicate that the petitioner or his research t~am was the first to devise this usage of 
the Merci device. Rather, the article stated: 
A review of the literature reveals several reports of the Merci Retriever device 
utilized for the ·management of coil migration .... 
Vora et al. reported the case of a 37-year-old man who suffered a subarachnoid 
hemorrhage from vertebral confluence aneurysm. !During treatment of the aneurysm 
by stent-assisted coil embolization, a misplaced cop became entangled with the stent 
during attempted 
repositioning. The Merci device was utilized successfully for - I . 
removal of the stent-coil complex, and the aneurysm was subsequently embolized. 
O'Hare and colleagues reported migration ofthe cbil from a PCOM aneurysm to the 
MCA, which once free in the MCA was sucdessfully retrieved using an old­
generation X6 Merci Retriever. 
(Citations omitted.) The petitioner's own article, quoted above, proves that the petitioner's research 
group was not the first to use the Merci device to extract thlgrated coils, and was not the first group 
to publish such results. The bibliography of the petition~'s 2012 article identifies two articles that, 
by their titles alone, report earlier successes: a 2008 article in the Journal of Neuroimaging by N. 
Vora et al., ''Retrieval of a displaced detachable coil kd intracranial stent with an L5 Merci 
Retriever during endovascular embolization of an intr~cranial aneurysm," and "Retrieval of a 
migrated coil using an X6 MERCI device" by A. O'Hare et al., published in Interventional 
Neuroradiology in 2009. Both of these articles predate the 2010 conference where the petitioner 
first presented his own results. 
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associate professor of neurological surgery at 
Tennessee, stated: 
Nashville, 
After independently reviewing his resume, I can unequivocally state that [the 
petitioner] has accomplished a tremendous amount in the span of very few years .... 
I have rarely seen this amount of scholarly activit~. [The petitioner's] achievements 
span the entire breadth of neurosurgery and are of Impressive quality. 
praised two ofthe petitioner's papers, referrink to each of them as a "manuscript." The 
petitioner did not submit the papers with the initial submtssion at all, and the versions submitted in 
response to the request for evidence were not finalized., The papers exist in the record only as 
unpaginated, pre-publication proofs. There is no evidence, therefore, that the articles existed when 
the petitioner filed the petition on February 1, 2012. An japplicant or petitioner, must establish that 
he or she is eligible for the requested benefit at the t~e of filing the benefit request. 8 C.F.R. 
§ 1 03.2(b )(1 ). US CIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Sek Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
Regarding one of those articles, stated: 
Another example is [the petitioner's] examination of the practice of many spine 
surgeons to position their patients with an extra! high padding at the level of the 
· thighs to obtain better lordosis. [The petitionerjs] manuscript explains the major 
adverse events that can take place in such patients in the manuscript 'Anterior thigh 
compartment syndrome and local myonecrosis dfter posterior spine surgery on a 
Jackson table: report of two cases.' Candidness! in reporting this complication is 
very essential in the field of neurosurgery and it is a very rare quality.· This paper 
has improved patient care at many centers. 
did not identify any ofthe "many centers" or provide any evidence to support the claim. 
Going on record without supportmg documentary evidencb is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of So.ffibi, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citingMatterofTreasure CraftofCalifomia, 14 I&N Dep. 190 (Reg'l Comm'r 1972)). The article 
itself was not merely 
an "examination of the practice" of padding placement. Rather, it described 
complications in two surgeries in which the petitioner pckicipated; in one of those complications, 
the patient died of a pulmonary embolism two weeks aftbr surgery. The article indicated that the 
surgical team had intentionally changed the positions ofjsupport pads on ·the operating table, and 
that ''the pressure of the higher IC pads on the thigh was obviously not well tolerated by these 
patients undergoing long surgeries." The authors conclhded: "IC and thigh pads should not be 
reversed during positioning on a Jackson table." The petitioner submitted no evidence that reversal 
of the pads was common practice at "many centers" or tl~at the publication of the article. ended the 
practice. 
It is certainly true that candor is an important quality, so that others can learn from errors like those . I 
reported in the article~ Nevertheless, given its contents, this article is not persuasive evidence that 
the petitioner "is one of the nation's top spinal surgefy specialists" as previously 
I 
(b)(6)
Page 13 
claimed, or "one of the nation's top neurosurgery specialists" as . _ more recently asserted. 
previously pointed to individual patient outco
1
mes as evidence that the petitioner should 
receive the waiver. That logic, applied here~ would surely be a negative factor. 
The director denied the petition on September 19, 2012. The director acknowledged the petitioner's 
published work, but found that the petitioner had not est~blished its importance or influence. The 
director also acknowledged the witness letters, but fo~nd that they did not establish that the 
petitioner's accomplishments ''were significantly greater
1 
than his peers" or that ''the petitioner's 
work has been widely used in the field as a whole." 
On appeal, counsel repeats the assertion that the publicat·ion ofthe petitioner's work shows that it 
"has been recognized for its influence." The petitioner sdbmits nothing from the publishers of any 
I 
journal to show that publication is a form of recognition for influence, and counsel fails to explain 
how a work can be influential even before it becomes wid~ly available through publication. 
Coun8el also repeats the observation that the publisher of the , _ _ _ textbook referred to 
the book's contributors as "leading experts." Self-serving promotional materials carry negligible 
weight as objective evidence ofthe petitioner's influence Jr stature in his field. 
Cotinsel asks that the AAO ''take into consideration tJe testimonials from experts in the field 
. I 
attesting to the significance of [the petitioner's] work." The Board oflmmigration Appeals (BIA) . I . . 
has held that testimony should not be disregarded simply because it is "self-serving." See, e.g., 
I 
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 intrdduction of corroborative testimonial and 
documentary evidence, where available." !d. If testimobial evidence lacks specificity, detail, or 
credibility, there is a greater heed for the petitioner to s~bmit corroborative evidence. Matter of 
Y-B-,21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have· received consideration 
above. USCIS may, in its discretion, use as advisory ~pinions 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 detbnmation regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters frbm 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 inlany way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony . I 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 )&N Dec. 165. The 
letters considered above contain assertions of acclaim J 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 ~erification and evideritiary support, but the petitioner has not 
provided that support. 
Some witness letters oontain similar language when describing the beneficiary's achievements and 
abilities, suggesting the language in the letters is not the ahthors' own. Cf Surinder Singh v. Board I . 
of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006) (upholding an immigration judge's I 
(b)(6)
' . 
Page 14 
adverse credibility determination in asylum proceedings based in part on the similarity of some of 
the affidavits); Mei Chai Ye v. US. Dept:· of Justice, 489jF.3d 517, 519 (2d Cir. 2007) (concluding 
that an immigration judge may reasonably infer that when an asylum applicant submits strikingly 
. I 
similar affidavits, the applicant is the common source). The similarly worded letters regarding the 
petitioner's use of the Merci retrieval device implied thatlthe petitioner had devised a new use for a 
Qevice previously used only for"clot retrieval," but the record shows that the petitioner was not the 
first to publish about the use of the device for retrieval of migrated coils in aneurysm patients. At 
best, the petitioner was among the early adopters of the htethod.· Thus, the letters are not only of 
questionable origin, but also factually suspect. Doubt dst on any aspect ofthe petitioner's proof 
may lead to a reevaluation of the reliability and sufficiepcy of the remaining evidence offered in 
support ofthe visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Counsel states: "Because of [the petitioner's] desire t combine clinical care with research, 
immigration based on self petition is the best possibility tb ensure that he continues his research, as 
the. ~ermanent . immigratio~ through l~bor certi~cation !would be s~ifter if he ceased resear~h 
activtty." Thts hypothetical alternative scenano lackS corroboration and explanatory detail. 
Furthermore, apart from articles that largely summarize phor publications, much of the petitioner's 
recent published work has involved reporting the reshlts of surgical procedures that he has 
performed. Counsel does not explain why the labor j certification process would prevent the 
petitioner from continuing to publish case studies in this. jNay. Furthermore, a petition filed with a 
labor certification would not permanently prevent the petitioner from continuing in research, even if 
the labor certification. were for a strictly clinical position.j Counsel has not shown that, as a lawful 
permanent resident, the petitioner would face restrictions on his ability to accept positions that 
would combine research with clinical practice. The recotd does not show that the petitioner's past 
research contributions have been of such consequence thJt it would be against the national interest 
to curtail those activities even temporarily. Rather, the redord indicates that the petitioner is, or very 
recently was, a 'junior resident" whose chief obstacle to ~permanent job offer is that he has not yet 
completed the professional training that would qualify !him for a research/clinical position, for 
instance on the faculty of an accredited medical school. To obtain permanent immigration benefits 
I 
at this early stage would certainly be in the petitioner's interest, but the petitioner has not shown 
that it would be in the national interest. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person . I 
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 appbar to have been the intent of Congress to 
grant national interest waivers on the basis of the overall urlportance of a given profession, rather than 
on the merits of the individual alien.. On the basis of the jevidence submitted, the petitioner has not 
established that a waiver of the requirement of an approvoo 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 burdeh. . 
ORDER: The appeal is dismissed.