dismissed EB-2 NIW Case: Nutrition

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 09 083 52373 
 APR 1 6 2010 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
This petition, filed on January 21, 2009, seeks to classify the petitioner pursuant to section 203(b)(2) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(2), as an alien of exceptional ability 
or a member of the professions holding an advanced degree. The documentation submitted by the 
petitioner reflects that she worked at "the Queens Hospital Center as a Dietician from November 1, 
2004 to October 21, 2008." The petitioner asserts that an exemption from the requirement of a job 
offer, and thus of a labor certification, is in the national interest of the United States. The director 
found that the petitioner qualifies for classification as a member of the professions holding an 
advanced degree, but that the petitioner has not established that an exemption from the requirement 
of a job offer would be in the national interest of the United States. 
On appeal, counsel argues that the petitioner's "expertise has a national impact and that it warrants 
exemption from the Labor Certification Process." 
Section 203(b) of the Act states in pertinent part that: 
(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 j ob offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirements of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
The regulation at 8 C.F.R. 5 204.5(k)(3)(:i), states: 
To show that the alien is a professional holding an advanced degree, the petition must be 
accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
Page 3 
(B) An official academic record showing that the alien has a United States baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters fiom current or 
former employer(s) showing that the alien has at least five years of progressive post- 
baccalaureate experience in the specialty. 
The petitioner asserts that she is an alien of exceptional ability. This issue is moot, however, because 
the director found that the petitioner qualifies as a member of the professions holding an advanced 
degree.' The remaining issue is whether the petitioner has established that a waiver of the job offer 
requirement, and thus an alien employment certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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., 1 1 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
The Service 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 fiom, or waiver of, the job offer will be in the national interest. Each case is to be 
judged on its own merits. 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Cornm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, it must be shown that the alien seeks employment in an area of 
substantial intrinsic merit. Id at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id Finally, the petitioner seeking the waiver must establish that the alien will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. Id at 2 1 7- 1 8. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
' The record reflects that the petitioner received a Bachelor of Science degree in "Foods and Nutrition" from the College 
of the Holy Spirit in the Philippines (198 1) and that she has at least five years of progressive post-baccalaureate experience 
in her specialty in the United States. The petitioner's occupation falls within the pertinent regulatory definition of a 
profession. The petitioner thus qualifies as a member of the professions holding an advanced degree. 
national interest cannot suffice to establish prospective national benefit. The inclusion of the term 
"prospective" is used here to require future contributions by the alien, rather than to facilitate the entry 
of an alien with no demonstrable prior achievements, and whose benefit to the national interest would 
thus be entirely speculative. Id. 
We also note that the 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 offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
With regard to the first factor set forth in NYSDOT, we find that the petitioner works in an area of 
intrinsic merit, nutrition. 
Regarding the second factor in NYSDOT, whether the proposed benefit of the petitioner's work will be 
national in scope, counsel states: "As a Dietician, [the petitioner] is actively engaged in the 
improvement of healthcare in the U.S. particularly in obesity, diabetes, heart diseases & hypertension 
through giving appropriate Nutrition interventions to patients who are mostly indigent, under the 
Medicaid and Medicare program." Part 6, "Basic information about the proposed employment," of 
the Immigrant Petition for Alien Worker, Form 1-140, was left blank. Moreover, a January 12, 2009 
employment verification letter from the Queens Health Network indicates that the petitioner's 
employment as a dietician with Queens Hospital Center in New York terminated on October 21, 
2008. The documentation initially submitted does not specify where the petitioner will be working 
as a dietician and how the benefits of her work with patients there will be national in scope. 
Even if the petitioner had submitted more specific information about her proposed employment in 
the United States, id. at 21 7, n.3 provides examples of employment where the benefits would not be 
national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the impact of 
an individual attorney working pro bono would be so attenuated at the national level as to be 
negligible. Similarly, while education is in the national interest, the impact of a single 
schoolteacher in one elementary school would not be in the national interest for purposes of 
waiving the job offer requirement of section 203(b)(2)(B) of the Act. As another example, 
while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not 
be considered sufficiently in the national interest for purposes of this provision of the Act. 
As a dietician working with patients in the Medicaid and Medicare programs, the petitioner has not 
established the benefits to the United States which she will impart would be national in scope. 
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. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualify for a national interest waiver. Id. at 
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique 
background." Special or unusual knowledge or training 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. Id. at 221. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that 
the petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id at 221, n. 7. 
Along with her educational qualifications, two letters verifying the dates of her past job experience, 
various training certifications, two recognition certificates, and articles about obesity and diabetes, 
the petitioner submitted two letters of recommendation. 
I had worked with [the petitioner] since 2004-2008. She had worked as an Inpatient & 
Outpatient Dietitian. During this period, she was able to handle different floors such as 
MedicalISurgical, Mother & Baby, Labor & Delivery, Pediatrics, Psychiatry & Detox, 
Cancer Center & Rehabilitation Units which I think showed her flexibility, willingness to 
work on any given assignments & competency in knowledge of Medical Nutrition Therapy. 
She was also able to establish good rapport with her co-workers & patients with different 
ethnic backgrounds which is an important skill to acquire in any given workplace. 
As a Dietitian, her performance & skills will be an asset & of great help to facilitate a 
positive contribution in the prevention, care & improvement of health in United States. 
does not provide specific examples of how the petitioner's work as a dietician has 
influenced the field as a whole. With regard to the petitioner's skills and experience as a dietician, 
objective qualifications and experience necessary for the performance of a particular occupation can 
be articulated in an application for alien employment certification. Pursuant to NYSDOT, 22 I&N 
Dec. at 221, an alien cannot demonstrate eligibility for the national interest waiver simply by 
establishing a certain level of experience or skills that could be articulated on an application for 
employment certification. 
It is my pleasure to recommend [the petitioner], whom I have known for 4 years, to work as 
Dietitian. She had worked in various capacities as a clinician covering some of the specialty 
units of the facilities such as the Cancer Center, Mother & Baby, Labor & Delivery, Psych & 
Detox, Pediatrics, MedISurg and Rehab units. 
[The petitioner] is organized, extremely competent and wonderful rapport with a very diverse 
type of patients which include the minorities such as Blacks, Hispanics, & Asian. She also 
has a good verbal and written communication skills, which is one the important assets in 
nutrition assessment. 
[The petitioner's] performance is highly valuable and recommendable. Her extensive 
knowledge and skills in medical nutrition therapy will positively contribute to the 
improvement of health in the United States. 
states that the petitioner has "extensive knowledge and skills in medical nutrition 
therapy," but she does not provide specific examples of how the petitioner's work has influenced the 
field as a whole. It cannot suffice to state that the alien possesses useful skills, or a "unique 
background." Regardless of the alien's particular experience or skills, even assuming they are unique, 
the benefit the alien's skills or background will provide to the United States must also considerably 
outweigh the inherent national interest in protecting U.S. workers through the labor certification 
process. NYSDOT, 22 I&N Dec. at 221. 
The petitioner submitted a July 16,2008 certificate reflecting that she received an Excellence Award 
"[iln recognition of valuable contributions of excellence to the Dietary Department." The petitioner 
also submitted a September 19, 2007 Certificate of Appreciation "in recognition of valuable 
contributions to the Dietary Department." These certificates reflect institutional recognition rather 
than recognition throughout her field. The petitioner's initial submission also included two letters 
verifying the dates of her past job experience. The departmental recognition certificates and letters 
from former employers verifying the dates of the petitioner's job experience relate to the regulatory 
criteria for classification as an alien of exceptional ability, a classification that normally requires an 
approved employment certification. 8 C.F.R. § 204.5(k)(3)(ii). We cannot conclude that meeting 
one, two, or even the requisite three criteria for classification as an alien of exceptional ability 
warrants a waiver of the labor certification requirement in the national interest. By statute, 
"exceptional ability" is not, by itself sufficient cause for a national interest waiver. NYSDOT, 22 
I&N Dec. at 218. Thus, the benefit which the alien presents to her field of endeavor must greatly 
exceed the "achievements and significant contributions" contemplated for that classification. Id.; 
see also id. at 222. 
On March 24, 2009, the director issued a Notice of Intent to Deny informing the petitioner that her 
initial evidence did not establish that the proposed benefits of her work would be national in scope and 
that she would serve the national interest to a substantially greater degree than would an available U.S. 
worker having the same minimum qualifications. The notice was sent to counsel at her current address 
and advised that a failure to respond may result in the petition being denied. The director received no 
response. Accordingly, on May 14, 2009, the director denied the petition stating that the petitioner 
Page 7 
had not established that a waiver of the required job offer and approved employment certification 
would be in the national interest of the United States. The director's decision noted a lack of 
evidence showing that the petitioner's work has had a significant on her field as a whole. We affirm 
the director's findings. 
On appeal, counsel states: 
[W]e request that the USCIS [U.S. Citizenship and Immigration Services] take a second hard 
look on [the petitioner's] qualifications and experience especially her vital participation in the 
WE COACH program which provides responsive intervention for seniors with uncontrolled 
diabetes. The studies and research on diabetes by the WE COACH has a national impact in that 
it is one sickness that has afflicted millions of Americans, from juvenile to seniors. 
As discussed, we generally do not accept the argument that a given project is so important that any 
alien qualified to work on this project must also qualify for a national interest waiver. NYSDOT, 22 
I&N Dec. at 21 8. 
The petitioner's appellate submission includes a June 4, 2009 letter from- 
New York, stating: 
I am writing at the request of my constituent [the petitioner] who resides in my district . . . . 
According to [the petitioner], she has been a vital part of the "WeCOACH" New York City. 
This program provides responsive intervention for seniors with uncontrolled diabetes. 
WeCOACH targets adults primarily 65 years of age or older who have difficulty controlling 
their diabetes. The program provides exercise activ[ities], healthy diets, and weekly 
coaching programs for seniors struggling over this 6 week program. 
As a coach in this program, [the petitioner] is specifically assigned to her participants based 
on her healthcare background and ability to match her patient's needs. I am convinced that 
the WeCOACH program will not be as successful without the effective services of [the 
petitioner]. 
The documentation initially submitted by the petitioner did not include any information about the 
WE COACH program or the petitioner's involvement in that particular program as of the petition's 
filing date. A petitioner may not make material changes to a petition that has already been filed in 
an effort to make an apparently deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). Where, as here, a petitioner has been put on notice 
of deficiencies in the evidence and has been given an opportunity to respond to those deficiencies, 
the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the 
petitioner had wanted the evidence pertaining to her involvement in the WE COACH program to be 
considered, she should have submitted the documents in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence that should have been submitted in response to Notice of Intent to Deny but is only now 
submitted on appeal. Nevertheless, there is no evidence indicating that the benefit of the petitioner's 
services as dietician or nutritionist with the WE COACH program will extend beyond New York. 
While diabetes can be considered a national healthcare problem, it has not been demonstrated that 
the proposed benefits of the petitioner's work as a dietician or nutritionist would be national in 
scope. Rather, the petitioner's individual impact working with seniors in New York would be so 
attenuated at the national level as to be negligible. 
In evaluating the reference letters, we note that the letters discussing the petitioner's work 
experience, skills, and training are less persuasive than letters that provide specific examples of how 
the petitioner has influenced her field as a whole. USCIS may, in its discretion, use as advisory 
opinion statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 
791, 795 (Commr. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters of 
support from individuals selected by the petitioner is not.presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 
795. USCIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Id. at 795; see also Matter of SofJici, 22 I&N Dec. 158, 
165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 
1972)). In this case, the content of the letters of support submitted by the petitioner does not 
establish that her work at the time of filing had already had a significant national impact or otherwise 
influenced her field as a whole. 
Whlle petitioner has earned the admiration of her colleagues, she has not established that her past 
record of achievement is at a level that would justify a waiver of the job offer requirement which, by 
law, normally attaches to the visa classification sought by the petitioner. We note that the petitioner 
need not demonstrate notoriety on the scale of national acclaim, but the national interest waiver 
contemplates that her influence be national in scope. NYSDOT, 22 I&N Dec. at 217 n.3. More 
specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." Id. at 
21 8. See also id. at 21 9 n.6 (the alien must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole.") 
As is clear from a plain reading of the statute, it was not the intent of Congress that every alien of 
exceptional ability 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 occupation, rather than on the merits of the individual alien. 
On the basis of the evidence submitted, the petitioner has not established that a waiver of the 
requirement of an approved alien employment certification will be in the national interest of the United 
States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied 
by an alien employment certification certified by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.