dismissed EB-2 NIW Case: Ophthalmology

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 2 2 2015 Office: TEXAS SERVICE CENTER FILE: 
IN RE: 
PETITION: 
Petitioner: 
Beneficiary: 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to· present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Jt.�:�� trat;ve Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. We 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 an ophthalmology researcher. The petitioner submitted 
documentation indicating that he intends to work in the , California pediatric clinic of Dr. 
_ M. D. "for purposes of conducting collaborative research in the sphere of pediatric 
ophthalmolo gy. " 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, the petitioner asserts that he has submitted sufficient evidence to establish eligibility for the 
benefit sought. Although the petitioner indicated in Part 3 of the Form I-290B, Notice of Appeal or 
Motion, that a "brief and/or additional evidence will be submitted to the AAO within 30 calendar days 
of filing this appeal, " as of this date, we have received nothing further. 
I. LAW 
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 an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The record reflects 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. 
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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." In reNew York State Dept 
ofTransportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) (NYSDOT), set forth several 
factors which must be considered when evaluating a request for a national interest waiver. First, a 
petitioner must establish that he seeks employment in an area of substantial intrinsic merit. !d. at 217. 
Next, a petitioner must establish that the proposed benefit will be national in scope. !d. Finally, the 
petitioner seeking the waiver must establish that he will serve the national interest to a substantially 
greater degree than would an available U.S. worker having the same minimum qualifications. !d. at 
217-18. 
The petitioner has established that his work as an ophthalmology researcher is in an area of 
substantial intrinsic merit and that the proposed benefits of his research concerning prevention and 
treatment of Diabetic Retinopathy and 1 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. 
Although the national interest waiver hinges on prospective national benefit, the pet1t10ner must 
establish his past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's subjective assurance that he will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require 
future contributions by the petitioner, rather than to facilitate the entry of an individual with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
Furthermore, eligibility for the waiver must rest with the petitioner's own qualifications rather than 
with the position sought. Assertions regarding the overall importance of a petitioner's area of 
expertise cannot suffice to establish eligibility for a national interest waiver. NYSDOT at 220. At 
issue is whether this petitioner's contributions in the field are of such significance that he merits the 
special benefit of a national interest waiver, a benefit separate and distinct from the visa 
classification he seeks. A petitioner must demonstrate a past history of achievement with some 
degree of influence on the field as a whole. !d. at 219, n. 6. In evaluating the petitioner's 
achievements, 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. !d. 
at 221, n. 7. 
II. ANALYSIS 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on March 8, 2013. The 
director determined that petitioner's impact and influence on his field did not satisfy the third prong of 
the NYSDOT national interest test. 
In addition to documentation of two patents registered with the Intellectual Property Agency of the 
Republic of his publications, conference presentations, and medical training credentials, 
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the petitioner submitted various reference letters discussing his work in the field. The petitioner 
asserts that he has made "important discoveries in the field of ophthalmolo gy. " 
Dr. Head of the , states: 
I am impressed by the following 2 discoveries made by [the petitioner] concerning 
ophthalmic complications in patients with Diabetes Mellitus: 
• 
• 
Dr. mentions that the petitioner presented the results of his work at an ophthalmology 
conference at and that the petitioner authored a manuscript published in 
, but there is no documentary evidence showing that the petitioner's published and 
presented work has been frequently cited by independent researchers or that his discoveries have 
otherwise affected the field as a whole. 
Dr. 
Prosthetics, 
in 2003 at the 
Department of Traumatology, Plastic-Reconstructive Surgery, and Ocular 
states that he met the petitioner 
. Dr. continues: 
I was greatly impressed by [the petitioner's] scientific achievements in the 
ophthalmology, both alone and as a member of a research team led by Dr. 
Specifically, I was presented with two of [the petitioner's] research papers -
- . . 
sphere of 
Ph. D. 
which 
immediately caught my interest and later found a practical use in my career as a surgeon 
ophthalmologist. The papers were also published in journals in Russia and Poland, which I 
also introduced to my colleagues in Russia. 
Dr. asserts that the petitioner's two research papers caught his interest and later found a 
practical use in his career as a surgeon ophthalmologist, but there is no documentary evidence 
demonstrating that the petitioner's surgical methods have been implemented at a number of eye care 
centers or hospitals, that the petitioner's research papers are frequently cited by others in the 
ophthalmology field, or that his work has otherwise influenced the field as whole. 
Dr. . further states: 
[The petitioner] was researching surgical and prophylactic treatment methods for diabetic 
patients with DVR [diabetic vitreoretinopathy ], and discovered that intravitreal injection of 
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medication ' ' significantly reduces surgery duration and its complications, and in some 
specific cases of the disease prevents it from developing in the first place. These exceptional 
findings awarded [the petitioner] a Ph. D. degree ... . 
Dr. comments on the petitioner's discovery that an intravitreal injection of the medication 
' significantly reduces surgery duration and its complications, but there is no documentary 
evidence showing that the petitioner's Ph.D. findings are frequently cited by independent researchers 
or have otherwise impacted the field as a whole. Although the petitioner's graduate research may 
have value, any research must be original and likely to present some benefit if it is to receive funding 
and attention from the medical or scientific community. In order for a university, publisher or 
grantor to accept any research for graduation, publication or funding, the research must offer new 
and useful information to the pool of knowledge. Not every ophthalmologist who performs original 
research that adds to the general pool of knowledge in the field inherently serves the national interest 
to an extent that is sufficient to waive the job offer requirement. 
Dr. 
states: 
, Urologist, Urology Department, 
As I came across two different articles, printed in Armenian and Russian scientific journals, I 
was astonished to find that numerous top notch research studies are being conducted by [the 
petitioner] to fight diabetic eye complications in These articles were: (1) 
" 
Dr. asserts that the petitioner's "top notch" articles entitled ' 
' were printed in 
Armenian and Russian scientific journals. The petitioner, however, has not submitted documentary 
evidence showing that his journal articles have been frequently cited by independent researchers, 
have affected treatment protocols at various ophthalmology centers with corresponding improvement 
in patient outcomes, or have otherwise affected the field as a whole. 
Dr. Professor of Ophthalmology at 
Department at the 
research since 1998. Dr. states: 
and Head of the Traumatology 
, has supervised the petitioner's 
[I]n 2010 [the petitioner] presented his Ph. D. thesis at Specialized Scientific Council in 
, titled ' 
- -
Certifying Commission of the Republic of 
Doctor of Philosophy in Medicine (Ph.D.). 
* * * 
- -
'' for which the Supreme 
. has awarded him the degree of 
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He has published nine scientific studies in different and international journals, has 
participated in more than 20 conferences and is a registered author of two inventions in the 
field of ophthalmic surgeries. 
Dr. comments on the petitioner's Ph. D. research, his nine journal publications and 
participation in 20 medical conferences, and J:lis authorship of two inventions in the ophthalmic 
surgery field, but does not provide specific examples of how the petitioner's work has been applied 
by others in the field or has otherwise influenced the field as a whole. 
Dr. Ophthalmologist, , states that the petitioner joined 
his center's ophthalmology department "for 3 months as a guest practitioner ophthalmologis t." Dr. 
asserts that the petitioner broke "new ground in studying the mechanisms underlying 
disorders in eye fundus: Age related macular degeneration; Diabetic angioretinopathy; Hypertension 
disorders, etc.," but does not offer examples of how the petitioner's findings have had a specific 
effect on ophthalmological diagnostic and treatment protocols in the field. Dr. continues: 
In he conducted a critical project involving the simultaneous evaluation of 
liquefaction of vitreous and the behavior, during each phase of posterior hyaloid membrane 
detachment. 
Based on [the petitioner's] findings, [a] surgical and prophylactic new method of treatment 
for patients with diabetic proliferative vitreoretinopathy was achieved. 
Although Dr. asserts that the petitioner's eye research resulted in a " 
" he does not provide specific examples of 
how the petitioner's results have been implemented at ophthalmology care centers or how surgical 
practices in the field have changed in response to his findings. 
Dr. further states: 
Because of his direct interaction with patients as a surgeon, he is better equipped and better 
qualified than other researchers in the field. The exceptional combination of highly 
specialized and sophisticated knowledge, technical abilities, experience and discipline makes 
him uniquely qualified to conduct the extremely complex research studies. A scientist of his 
caliber with his unique combination of skills and practical experience, is absolutely 
indispensable for the success of any research group, laboratory or research facility. 
Dr. comments on the petitioner's "unique combination of skills," knowledge, and practical 
experience as an eye surgeon and research scientist, but special or unusual knowledge or training 
does not inherently meet the national interest threshold. NYSDOT at 221. Any assertion that the 
petitioner possesses useful skills, or a "unique background" relates to whether similarly-trained 
workers are available in the United States and is an issue under the jurisdiction of the U.S. 
Department of Labor through the labor certification process. Id. 
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Dr. Director, 
that he worked with the petitioner on the 
I was present at the 
. Dr. 
Alabama, states 
continues: 
September, 1, when [the petitioner] gave a brilliant speech about his scientific 
accomplishments. I was simply amazed by the amount of work he puts into research, 
understanding the etiology and pathogenesis and treatment of eye diseases. 
Dr. mentions the petitioner's presentation at the 
but there is no evidence showing that once disseminated the petitioner's 
work has been frequently cited by others or that his findings have otherwise influenced the field as a 
whole. With regard to the petitioner's presentations at various medical conferences, many 
professional fields regularly hold meetings and conferences to present new work, discuss new 
findings, and to network with other professionals. Professional associations, educational institutions, 
healthcare organizations, employers, and government agencies promote and sponsor these meetings 
and conferences. Although presentation of the petitioner's work demonstrates that he shared his 
original findings with others, there is no documentary evidence showing, for instance, frequent 
independent citation of his work, or that his findings have otherwise affected the ophthalmology field 
at a level sufficient to waive the job offer requirement. 
Dr. further states: "During the preparation of his Ph.D. thesis, throughout his extensive 
theoretical and practical work, he had described several methods and techniques for the treatment of 
proliferative diabetic retinopathy. Those methods have been implemented by many vitreo-retinal 
specialists. " Dr. however, does not identify the vitreo-retinal specialists who have 
utilized the petitioner's methods or provide specific examples of how the petitioner's techniques 
have affected proliferative diabetic retinopathy treatment protocols in the field. users need not rely 
on unsubstantiated statements. See 1756, Inc. v. US Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) 
(holding that an agency need not credit conclusory assertions in immigration benefits adjudications); 
see also Visinscaia, 4 F.Supp. 3d at 13 4- 35 (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field). 
Dr. , a vitreo-retinal surgeon with 
met the petitioner while doing volunteer medical missions in Dr. 
states that he 
continues: 
One of the noteworthy details of [the petitioner's] career is the fact that he was part of a 
research group in , along with M.D. , Ph. D. and 
_ Ph. D., which existed for more than 10 years .... This research team 
has published dozens of scientific studies in different journals worldwide, and its members 
underwent training in various leading teaching hospitals in the U.S. and Europe. For 
instance, [the petitioner] underwent a three-month training in Posterior Segment Surgery at 
Germany 1 I, attended an Observation Program at 
with an invitation from and 
-
attended numerous conferences in New York 
Georgia ( I, and NV ( 
Russia 
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Dr. asserts that the petitioner was part of a research team that "published dozens of 
scientific studies in different journals worldwide," but, again, there is no documentary evidence 
showing that the petitioner's findings have been frequently cited by independent researchers or have 
otherwise influenced the ophthalmology field. In addition, Dr. mentions the petitioner's 
surgical and ophthalmology training in Germany, the United States, Russia, and Georgia. Advanced 
training in ophthalmology or specialized medical knowledge, while attractive to the prospective U.S. 
employer, does not inherently meet the national interest threshold. NYSDOT at 221. 
Dr., Associate Professor, , and the petitioner's 
colleague at the , states: 
[The petitioner] is an expert in (performed 2000+ angiographies), 
is a classified Vitreo-retinal surgeon (performed several thousand Vitreo-retinal surgeries, 
Vitreo-retinal injections and surgeries on anterior segment of the eye), and is currently the 
only ) surgeon in 
Dr. _ mentions the petitioner's surgical skills and experience, and comments that the 
petitioner has performed a large number of surgical procedures, but any objective qualifications 
which are necessary for the performance of his occupation can be articulated in an application for labor 
certification. NYSDOT at 220-221. In addition, while Dr. asserts that the petitioner is 
"currently the only surgeon in ," she does not explain how the petitioner's surgical 
training differentiates him from U.S. ophthalmologists or serves the national interest to an extent that 
is sufficient to waive the job offer requirement. 
Dr. continues: 
[The petitioner] started a research study with hundreds of subjects, the results of which not 
only granted him a Ph. D., but also became registered and patented as innovations under his 
name in the sphere of ophthalmology. The findings from [the petitioner's] study were (1) 
surgical and prophylactic methods of treatment for patients with diabetic proliferative 
vitreoretinopathy, and (2) methods of removing of the Posterior Hyaloid and Internal 
Limiting Membranes, which were new to science at a time. Through these results he has 
gained worldwide recognition and published numerous papers in and abroad. 
Dr. asserts that the petitioner's research findings earned him a Ph. D., "became 
registered and patented as innovations under his name in the sphere of ophthalmolo gy," gained him 
"worldwide recognition," and resulted in numerous papers published in and abroad. The 
petitioner, however, has not submitted documentary evidence showing that his patented innovations 
have been well utilized beyond the medical center where he works, that his journal articles have 
been frequently cited by others in the field, or that his work has otherwise affected the field as a 
whole. Moreover, with regard to Dr. assertion that the petitioner "has gained 
worldwide recogniti on," US CIS need not accept unsubstantiated assertions. See 1756, Inc., 745 F. 
Supp. at 17; see also Visinscaia, 4 F.Supp.3d at 134-35. 
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Dr. Chief of the and Director of the 
states: 
In addition to group projects and his every-day tasks as a surgeon, [the petitioner] managed 
to find time for his individual research, which studied Retinopathies caused by Diabetes 
Mellitus - a task only the most enthusiastic and committed physicians will tackle. For 
several years he studied treatment methods for diabetic Vitreoretinopathies and yielded 
results so innovative, that both prophylactic and surgical methods became patented 
inventions under his name. The study also served as his Ph. D. dissertation. 
Dr. mentions the petitioner's retinopathy research and patented inventions, but does not 
provide specific examples of how the petitioner's work has affected the ophthalmology field as a 
whole. In response to the director's request for evidence, the petitioner submitted a July 11, 2013 
letter from Dr. stating that the petitioner's employer, the : 
has implemented his ' 
. Although Dr. asserts that the petitioner's methods 
have been implemented at the ophthalmologic center where he has worked since 2008, Dr. 
does not provide specific examples of how the petitioner's research findings have been implemented 
beyond his employer to an extent that demonstrates influence on the field as a whole. 
Dr. , Anesthesiology, Spine Intervention and Pain Management Physician, 
Massachusetts, states: 
[The petitioner], along with his research team, is one of very few researchers and physicians 
in the world who became authors of patented inventions in the field of medicine. For 
instance, his study " 
" 
published in various scientific journals in Germany, Russia, was registered 
by the and has since become the basis for 
further research by other scientists. What makes this study so special is the fact, that it is 
directed towards patients who have the disease Diabetes Mellitus, since they are under great 
risk of developing certain Retinopathies. 
Dr. mentions that the petitioner's study, entitled " 
" received a patent, but Dr. does not provide 
specific examples of how the petitioner's innovation has been implemented by other 
ophthalmologists to improve treatment of _ _ or has otherwise 
influenced the field. In addition, although Dr. asserts that the petitioner's work has 
"become the basis for further research by other scientists ," Dr. _ does not identify any of 
those scientists and there is no independent citation evidence demonstrating that other researchers 
have relied upon the petitioner's findings in their work. 
Dr. a pediatrician in a private medical practice in California, states that 
she previously worked with the petitioner at a hospital in and that they collaborated on a 
research project. Dr. continues: 
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[The petitioner] is an author of two inventions: " 
' - both patented and registered by the 
!::::==-------========='-- These breakthroughs contributed to the international 
scientific community and the health care of Armenia in general. 
In the same manner as previous references, Dr. states that the petitioner's work has 
resulted in two patents issued by the _ _ 
While issuance of a patent recognizes the originality of an idea, it does not demonstrate that the 
petitioner has influenced the field as a whole through his development of the invention. A patent is 
not necessarily evidence of a track record of success with some degree of influence over the field as 
a whole. NYSDOT at 221, n. 7. Rather, the significance of the innovation must be determined on a 
case-by-case basis. /d. Although Dr. asserts that the petitioner's innovations "contributed 
to the international scientific community and the health care of in general, " there is no 
documentary evidence showing that the petitioner's inventions have been implemented by various 
ophthalmological centers as treatment methods for eye afflictions or that his work has otherwise 
influenced the field as a whole. 
The petitioner submitted an "Employment Offer Letter" from Dr. offering the petitioner a 
job in her "clinic for purposes of conducting collaborative research studies in the sphere of pediatric 
ophthalmolog y. " The record, however, does not include any documentary evidence of the clinic's 
research studies or information about the research projects the petitioner will undertake. The 
petitioner must demonstrate that his proposed employment is within a framework that has a national 
impact, similar to the individual in NYSDOT, who worked on the proper maintenance of bridges and 
roads already connected to the national transportation system. /d. at 217. 
The director denied the petition on July 22, 2014. The director acknowledged the petitioner's 
submission of reference letters, his . patents, and his presented research, but determined 
that they failed to show that the petitioner's past accomplishments were sufficient to demonstrate 
eligibility for the national interest waiver. In addition, the director found that the submitted 
reference letters did not provide examples demonstrating that the petitioner's work has influenced 
the field as a whole. The director therefore concluded that the petitioner failed to establish that an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner asserts that the director erred in holding that the "testimonial letters from 
experts in the field did not establish that the [petitioner] has made noteworthy accomplishments 
compared to others in the field." In addition, the petitioner states that the director's conclusion was 
"subjective and baseless in view of the actual content of the testimonial s. " The petitioner mentions 
the July 11, 2013 letter from Dr. who states that the petitioner's employer has implemented 
his "new method of preventive and surgical treatment. " The testimonial letters submitted by the 
petitioner have already been addressed above. Again, the submitted evidence does not show that the 
petitioner's surgical methodologies have been well utilized outside of the ophthalmological center 
that employed him or that his work has otherwise affected the field as a whole. 
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The petitioner submitted letters of varying probative value. We have addressed the specific assertions 
above. Generalized conclusory assertions that do not identify specific contributions or their impact in 
the field have little probative value. See 1756, Inc., 745 F. Supp. at 17. In addition, uncorroborated 
assertions are insufficient. See Visinscaia, 4 F.Supp.3d at 134-35; Matter of Caron Int '!, Inc., 19 
I&N Dec. 791, 795 (Comm'r 1988) (holding that an agency "may, in its discretion, use as advisory 
opinions statements ... submitted in evidence as expert testimony," but is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought and "is not 
required to accept or may give less weight" to evidence that is "in any way questionable"). The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
users may evaluate the content of those letters as to whether they support the petitioner's 
eligibility. /d. See also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert 
opinion testimony does not purport to be evidence as to "fact"). 
In addition, the petitioner states that the director erred in applying the "Kazarian standard." 
Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010), involved a different immigrant visa classification 
than the one the petitioner seeks in the present matter. Specifically, Kazarian involved an individual 
seeking classification as an alien of extraordinary ability pursuant to section 203(b )(1 )(A) of the Act, 
8 U.S.C. § 1153(b)(1)(A). The director's analysis of the submitted evidence did not cite to the 
Kazarian decision or rely on any of its findings. In Kazarian, the court held that USCIS may not 
unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F. R. 
§ 204.5. Kazarian, 596 F.3d at 1121, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th 
Cir. 2008). The petitioner does not identify any part of the director's decision that imposed novel 
requirements and erroneously applied the Kazarian standard. 
The petitioner further states that the director imposed "a higher burden of proof upon the petitioner." 
The standard of proof in this matter is preponderance of the evidence. In most administrative 
immigration proceedings, the petitioner must prove by a preponderance of the evidence that he or she is 
eligible for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The Chawathe 
decision states: 
[I)f the petitioner submits relevant, probative, and credible evidence that leads the director to 
believe that the claim is "more likely than not" or "probably" true, the applicant or petitioner 
has satisfied the standard of proof. See INS. v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence taking 
place). 
!d. at 376. The truth is to be determined not by the quantity of evidence alone but by its quality. Id. 
The petitioner does not explain how the director applied a higher standard of proof or offer any 
specific examples from the director's decision. The director's decision properly considered the 
petitioner's evidence as it related to the NYSDOT factors. In the present matter, as discussed above, the 
submitted documentation does not demonstrate by. a preponderance of the evidence that a waiver of the 
requirement of an approved labor certification will be in the national interest of the United States. 
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III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
petitioner's work has influenced the field as a whole or that he will otherwise serve the national 
interest to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. Although the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the petitioner must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole. " NYSDOT at 219, n.6. On the basis of the evidence 
submitted, the petitioner has not established that a waiver of the requirement of an approved labor 
certification will be in the national interest of the United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.