dismissed EB-2 NIW Case: Oral And Maxillofacial Surgery

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-H-1-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 20, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a surgeon and researcher in the field of oral and maxillofacial surgery, seeks 
classification as.an individual of exceptional ability in the sciences or as a member of the professions 
holding an advanced degree; See section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2)(A). This employment-based immigrant classification allows a U.S. 
employer to sponsor a professional with an advanced degree for lawful permanent residence. It also 
makes immigrant visas available to individuals with a degree of expertise significantly above that 
normally encountered in the sciences, arts, or business. The Petitioner also seeks a national interest 
waiver (NIW) of the job offer requirement that is normally attached to this EB-2 immigrant 
classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director, Texas Service Center, denied the petition. The Director found that the Petitioner had 
not established his eligibility as an individual of exceptional ability nor did he establish that a waiver 
of the job offer requirement is in the national interest. The Director did not address the Petitioner's 
claim that he is eligible as a member of the professions holding an advanced degree. The Director 
also denied a subsequent motion to reopen and to reconsider. 
The matter is now before us on appeal. On appeal, the Petitioner submits a brief in which he claims 
that the Director's decision did not "sufficiently articulate a ground for denial," that it was 
"adjudicated under an improper standard of review using incorrect legal analysis," and that the 
Director "unilaterally imposed novel substantive or evidentiary requirements beyond those set forth 
in the regulations." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification normally requires 
Matter of J-H-J-
that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members 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) Subject to clause (ii), 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.[1] 
(ii)(I) The Attorney General shall grant a national interest waiver pursuant to 
clause (i) on behalf of any alien physician with respect to whom a petition for 
preference classification has been filed under subparagraph (A) if-
(aa) the alien physician agrees to work full time as a physician in an area 
or areas designated by the Secretary of Health and Human Services as 
having a shortage of health care professionals or at a health care facility 
under the jurisdiction of the Secretary of Veterans Affairs; and 
(bb) a Federal agency or a department of public health in any State has 
previously determined that the alien physician's work in such an area or at 
such facility was in the public interest. 
1 Pursuant to section 1517 of the Homeland Security Act of2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135,2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision ofthe Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national 
interest by increasing the number and proportion of visas for immigrants who would benefit the 
United States economically and otherwise .... " S. Rep. No. 55, 101 st Cong., 1st Sess., 11 (1989). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must 
demonstrate that the national interest would be adversely affected if a labor certification were 
required by establishing that he or she will serve the national interest to a substantially greater degree 
than would an available U.S. worker having the same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. !d. at 219, n.6. 
II. ANALYSIS 
The Petitioner asserts that he is eligible for classification under section 203(b )(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an individual of exceptional ability in the 
sciences. In response to the Director's request for evidence (RFE), the Petitioner states that he is 
also eligible for classification as a member of the professions holding an advanced degree. See 
section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The 
Director found that the Petitioner 
was not eligible as·an individual of exceptional ability and that he did 
not establish that a waiver of the job offer requirement is in the national interest. He did not address 
the Petitioner's eligibility as an advanced degree professional. 
Section 203(b)(2) ofthe Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification, inter alia, to 
members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(l). A petition 
for an advanced degree professional must establish that the Beneficiary is a member of the 
professions holding an advanced degree, and that the offered position requires, at a minimum, a 
professional holding an advanced degree. 
The Petition~r submitted a foreign degree equivalency evaluation reflecting that he received the 
equivalent of a doctor of dental surgery, a master's degree in dental science, and a PhD in dental 
science, from along with a doctor of medicine degree from 
Thus, we find that he qualifies as an advanced degree professional under 
section 203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
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Matter of J-H~J-
As the Petitioner is eligible for the underlying immigrant classification as a member of the professions 
holding an advanced degree, an additional finding of exceptional ability would serve no ·meaningful 
purpose in this matter. Thus, the remaining 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 
according to the three-pronged analysis set forth in NYSDOT. 
A. Substantial Intrinsic Merit 
At the time of filing, the Petitioner was employed as chief of dental surgery at 
in Korea. He also states that he is the medical director of 
The Petitioner submitted documentation showing that his work as a physician and dentist 
specializing in oral and maxillofacial surgery is in an area of substantial intrinsic merit. For 
example, the record includes information from the 
explaining the importance of periodontal health and the burden of oral disease, along with 
information from the explaining the connection between oral disease 
and systemic disease. Accordingly, we find that the Petitioner meets the first prong of the NYSDOT 
national interest analysis and the Director's determination on this issue is withdrawn. 
B. National Scope 
The Petitioner stated that his work "pioneering much needed efforts to create more cost effective and 
reliable treatments for patients requiring oral implants and reconstructive surgery" is in the national 
interest of the United States. The second prong of the NYSDOT national interest analysis requires 
that the benefit arising from the Petitioner's work will be national in scope. The Director determined 
that the Petitioner had not met this requirement because the benefit of his research was limited to 
in Korea. We disagree with the Director's determination that the Petitioner did 
not meet the second prong of the NYSDOT analysis based on the fact that his work was performed in 
Korea. NYSDOTs second prong is prospective in nature, and not limited to the Petitioner's past 
achievements, but rather, whether the proposed benefit will be national in scope. Accordingly, we 
withdraw this portion of the Director's decision. 
On appeal, the Petitioner points to a letter from professor and director of the 
at who 
explains that the Petitioner's work with dental bone gra~ surgery is critical to the field. 
indicates that the Petitioner's "research has been a driving force behind the success and advancement 
of the multidisciplinary comprehensive treatment and research," and that the 
Petitioner is "highly renowned for his excellent lectures and papers in the field of orthognathic 
surgery." further stated, "[The Petitioner] is greatly contributing to the development of oral 
and maxillofacial surgery field of Korea with his talent and capability." 
The Petitioner submitted evidence that he has published thirty articles in highly ranked professional 
journals articulating the results of his research. He also submitted evidence that he has authored 
chapters in medical textbooks and presented at industry conferences, including the 
comprised of eight oral maxillofacial surgeons from around the 
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(b)(6)
Matter of J-H-J-
world. The submitted documentation shows that the proposed benefit of his oral and maxillofacial 
research has national and international scope, as the results from his work are disseminated to others 
in the field through conferences and journals. Accordingly, we find that the Petitioner meets the 
second prong of the NYSDOT national interest analysis, and the Director's determination on this issue 
is withdrawn. 
C. Influence on the Field 
It remains, then, to determine whether the Petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The Director 
determined that the Petitioner's impact and influence on his field did not satisfy the third prong of the 
NYSDOT national interest analysis. 
In addition to documentation of his published work, conference presentations, peer review activities, 
research projects, professional memberships, and medical training credentials, the Petitioner 
submitted various reference letters discussing his work in the field. Several letters included 
statements that the Petitioner's research has "contributed" or has affected the practice of oral and 
maxillofacial surgery, but neither the content of the letters or the evidence in the record is sufficient 
to support a finding that his research has been widely implemented in clinical settings. For example, 
professor and chairman, 
claims that, "as a result of his clinical research and work, our colleagues in the 
field can now evaluate more precisely patients with facial asymmetry and acquire better results in 
their own treatment plans." does not explain how the Petitioner's work was disseminated, 
who exactly has implemented his techniques, nor does he point to treatment plans that have been 
modified according to the Petitioner's findings. Without a more specific explanation, coupled with 
documentary evidence in the record, we are unable to determine that the Petitioner's findings have 
already influenced clinical treatments of such conditions. Statements made without supporting 
documentary evidence are of limited probative value and are not sufficient for purposes of meeting 
the burden ofproofin these proceedings. Matter ofSo.ffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 
1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Similarly, professor of oncology, stated: "[The Petitioner] 
is currently involved in the clinical research on artificial bone for oral and maxillofacial 
rehabilitation las a principle investigator. I expect a pioneering, promising result in his research." 
While attested to the potential impact of the Petitioner's work, he did not offer any examples 
indicating that the Petitioner's work has already impacted medical practices or has otherwise 
influenced the field as a whole. A petitioner cannot successfully petition under this classification 
based on the expectation of future eligibility. Eligibility must be established at the time of filing. 
8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
The Petitioner states that the implications of his work regarding single tooth implants "benefit 
individuals around the world by preventing the use of this ineffective implant in patients requiring a 
molar implant, reducing treatment costs by eliminating failed implants and subsequent corrective 
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(b)(6)
Matter of J-H-J-
surgery." The Petitioner also insists that his work is "greatly advancing the research and clinical 
techniques for the Oral and Maxillofacial Surgeons in both South Korea and internationally." 
However, he has not provided evidence demonstrating that his work has affected diagnostic or 
treatment protocols for implant patients at other medical treatment facilities, has been frequently 
cited by other investigators in their medical research, or has otherwise influenced the field as a 
whole. The Petitioner also states that due to his "research, original contributions, and publications, 
physicians all over the country are able to reference and utilize his innovative research in their 
practice," but he provides no evidence that his work had an impact beyond the patients and staff at 
his hospitals. Furthermore, there is no evidence showing that the Petitioner's work as an evaluator, 
teacher, or clinician has influenced the field as a whole. 
Regarding his published and presented work, there is no presumption that every published article or 
conference presentation demonstrates influence on the field as a whole; rather, the Petitioner must 
document the actual impact of his articles or presentations. The Petitioner has submitted evidence 
that he has authored or co-authored 30 articles that have been published in scholarly journals, some 
with significant impact factors. However, there is no evidence showing that once disseminated 
through publication or presentation, the Petitioner's work has garnered a significant number of 
independent citations or that his findings have otherwise influenced the field as a whole. 
The Petitioner further claims that his role as a member of the publication committee and editorial 
board for the is evidence of 
his impact on the field as a whole. However, the evidence presented indicates that the Petitioner has 
performed peer review on four occasions for this journal, and that he is one of 78 "editorial review 
board members." There is no evidence demonstrating that the Petitioner's occasional participation in 
the widespread peer review process, even in the editorial process, is an indication of his impact on the 
field. 
With respect to the documentation reflecting that the Petitioner has presented his findings at oral and 
maxillofacial meetings and medical conferences, we note that many professional fields regularly 
hold meetings and conferences to present new work, discuss new findings, and to network with other 
professionals. Professional associations, educational institutions, healthcare organizations, 
employers, and government agencies promote and sponsor these meetings and conferences. 
Although presentation of the Petitioner's work demonstrates that he shared his original findings with 
others, there is no documentary evidence showing, for instance, frequent independent citation of his 
,work, the use of his findings by other physicians, or that his findings have otherwise influenced the 
field of oral and maxillofacial surgery at a level sufficient to waive the job offer requirement. 
On appeal, the Petitioner provides a personal statement listing his medical experience, training 
qualifications, research activities, instruction of students, and honors, but as indicated above, there is 
no documentary evidence showing that his work has affected the field of oral and maxillofacial 
surgery as a whole. The Petitioner contends that his work with as the principal 
investigator of a clinical trial, is evidence of his impact on the field. Yet, he does not explain his 
role, provide evidence confirming his role, or provide evidence that the results of the clinical trial 
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Matter of J-H-J-
impacted the field of oral and maxillofacial surgery. General information regarding 
is not sufficient to demonstrate the Petitioner's role in the study or its impact on the 
field. 
In addition, the Petitioner mentions his "leading" and "critical" roles in "high ranking teaching 
hospitals." With respect to the Petitioner's hospital duties and clinical skills as a physician and oral 
surgeon, any objective qualifications that are necessary for the performance of the occupation can be 
articulated in an application for labor certification. See NYSDOT, 22 I&N Dec. at 220-21. The 
testimonial letters discussing the Petitioner's medical skills and research projects have already been 
addressed above. Again, the submitted evidence does not show that the Petitioner's work has had an 
impact on the field as a whole as to warrant a waiver of the job offer. There is.no indication that the 
Petitioner's roles had an impact beyond the patients and staff at his hospitals. 
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. !d. In addition, uncorroborated statements are insufficient. See 
Visinscaia v. Beers, 4 F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' decision to give 
limited weight to uncorroborated assertions from practitioners in the field); See also Matter of Caron 
Jnt'l, Inc., 19 I&N Dec. 791,795 (Comm'r 1988) (holding that an agency "may, in its discretion, use 
as advisory opinions statements ... submitted in evidence as expert testimony," but is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought 
and "is not required to accept or may give less weight" to evidence that is "in any way 
questionable"). The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; US CIS 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"). As the submitted 
reference letters did not 
establish that the Petitioner's work has influenced the field as a whole, they 
do not demonstrate his eligibility for the national interest waiver. · 
We find that the Petitioner did not demonstrate that the Beneficiary has had sufficient influence on 
his field to satisfy the third prong of the NYSDOT analysis. As stated above, that prong requires a 
petitioner to demonstrate that he or she will serve the national interest to a substantially greater 
degree than would an available U.S. worker having the same minimum qualifications. To do this, a 
petitioner must establish "a past history of demonstrable achievement with some degree of influence 
on the field as a whole." !d. at 219, n. 6. On the basis of the evidence submitted, the Petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
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 
Matter of J-H-J-
qualifications. 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 he seeks. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. Although a petitioner need not demonstrate notoriety on the scale of national 
acclaim, he must have "a past history of demonstrable achievement with some degree of influence 
on the field as a whole." Jd. 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. 
It is the petitioner's burden to establish eligibility for the immigration benefit sought. See Section 
291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-H-J-, ID 10887 (AAO Oct. 20, 2016) 
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