dismissed EB-2 NIW Case: Pathology

(b)(6)
DATE: JAN 0 9 2G!5 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (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, 
f'��K:���trativc Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office 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 a athologist. At the time he filed the petition, the petitioner was on the 
cytopathology house staff of the , Maryland. He later 
began a fellowship in genitourinary pathology at the The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest 
of the United States. The director found that the petitioner qualifies for classification as a member of 
the professions holding an advanced degree, but that the petitioner has not 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 submits a statement asserting that the director did not give sufficient 
consideration to the evidence of record. 
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 director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOl st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional. "] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In re New York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, a petitioner must establish 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. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. Id. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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. 
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 offer/labor certification requirement; they are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as 
an alien of exceptional ability, or as a member of the professions holding an advanced degree, that 
alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarii y encountered in his or her field of expertise. 
I. Analysis 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 20, 2013. The 
initial submission included copies of the petitioner's journal articles and conference presentations. 
These materials establish the existence of his research work, but not its importance. 
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The petitioner submitted several letters with the petition. Dr. 
professor at the 
associate 
(where the petitioner claims past 
experience as a researcher), stated: 
I am aware of [the petitioner's] clinical feats as they have been disseminated as 
educational tools via publication and presentation in forums read and attended by 
practicing pathologists throughout the country. Furthermore ... his scientific 
research .. . has provided novel insight into issues that have plagued the pathology 
field for years. For example, [the etitioner's l first-authored study 
'' showed atypical manifestation of thereby 
allowing physicians who come across similar cases to make proper diagnoses. 
Dr. _ added: "There is a well-documented shortage of pathologists in the United 
States." The petitioner submitted background evidence to support this assertion, but not to support 
Dr. claims about the importance of the petitioner's work. A shortage of qualified 
workers is not grounds for waiving the job offer requirement, because the labor certification process 
takes the unavailability of U.S. workers into account. See NYSDOT at 218. Section 203(b )(2)(B)(ii) 
of the Act makes special waiver provisions available to physicians in designated shortage areas, but 
only under certain conditions specified in the statute and in the regulations at 8 C.P. R. § 204.12. The 
petitioner has not submitted the evidence required under those provisions, and has not claimed 
eligibility for the shortage-based waiver. Therefore, the general assertion of a shortage in his 
specialty is not grounds for waiving the job offer requirement under NYSDOT. 
Dr. associate professor at _ asserted that the petitioner 
"is regarded as a top pathologist as evidenced by his track record of esteemed employment positions 
throughout his career. " Dr. himself claimed no training, experience, or background in 
pathology. 
Dr. an instructor at and a physician at 
likewise claimed no expertise m pathology. Rather, Dr. is a 
radiologist, who studied at at the same time as the petltwner. Dr. 
_ 
listed several positions the petitioner has held in the past, including several house staff 
positions, and asserted: "It is a rare occurrence for a physician to be selected for such a variety of 
leading roles from such esteemed and highly-coveted institutions. " The petitioner did not submit 
documentary evidence to support any facet of this claim. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). House staff positions (residencies and 
fellowships) are, by nature, temporary training positions rather than "leading roles. " 
Like Dr. Dr. medical registrar at 
L--------�--·- at the same time as the petitioner. He earned a " 
attended 
" 
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while a medical student, but his medical practice has been in oncology. Dr. asserted that the 
petitioner's "work ... has had widespread impact not only on the pathology field, but other medical 
subspecialties as well. " Dr. did not elaborate on the latter claim. Dr. praised one of 
the petitioner's published articles, asserting that it has "(n]o doubt ... allowed for many accurate 
diagnoses" of angioimmunoblastic T-celllymphoma, although the petitioner submitted no evidence 
showing that his article led to a higher or more accurate diagnosis rate for the disease. 
Dr. a project scientist in the 
, claimed that the petitioner is "one of the finest pathologist( s] in the country 
today," having "mastered the most advanced medical technologies in pathology, matched only by a 
handful of his peer s." The only procedure that Dr. identified was the "frozen-section test." 
Dr. _ who is not a pathologist, cited no source to support the claim that only a "rare few 
pathologists" possess the "extraordinary expertise" to perform the procedure. 
Dr. head of the indicated that the petitioner 
"has distinguished himself among" "several bright pathologists" that Dr. has "had the 
opportunity .. . to educate. " Dr. asserted that the petitioner "has developed superior knowledge 
on the application of advanced techniques for clinical research and diagnosis in cytopathology, " such 
as "the microdissection of cells from cytology material using a specialized microscope," which Dr. 
claimed has been "mastered by only a few cytopathologists in the country. " Dr. cited no 
source for this information, and even then, there is no indication that the petitioner invented the 
technique. Special or unusual knowledge or training does not inherently meet the national interest 
threshold. See NYSDOT, 22 I&N Dec. at 221. Job-related training in a new method, whatever its 
importance, cannot be considered to be an achievement or contribution comparable to the innovation 
of that new method. 1d. at 221 n.7. 
The director issued a request for evidence (RFE) on October 28, 2013, stating that the petitioner had 
not established "demonstrable prior achievements" to establish the "influence or impact (the 
petitioner's] work has had in the field." In response, the petitioner submitted a statement indicating 
that his "track-record of clinical and research success is indicative of his ability to influence his field 
more than his colleagues and his unique combination of expertise provides a major benefit to the 
nation_" The statement identified three of the petitioner's published works, specifically two journal 
articles and a textbook entry. The statement indicated that one of the petitioner's articles "was 
downloaded 113 [times] since October and was cited by researchers from across the world," 
and another "was downloaded times in ' and "is currently referenced on the Wikipedia 
page ofHalicephalobus gingivali s." 
The petitioner submitted "article usage statistics" to support the download figures quoted above, but 
he provided no context to show that these numbers are unusual in the field. Similarly, the petitioner 
documented a request for a copy of one of his articles, but did not establish that such requests are 
infrequent and limited to articles of special significance. 
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The petitioner documented two citations of his published work, again without context to show that 
this rate of citation demonstrates uncommon influence. 
A printout of the Wikipedia entry for Halicephalobus gingivalis cites five references, including an 
article by the petitioner. Wikipedia is an open, user-edited site, and as a result, the evidentiary value 
of a Wikipedia entry in this proceeding is extremely limited. See Lamilem Badasa v. Michael 
Mukasey, 540 F.3d 909 (81h Cir. 2008). The printout shows that the "page was last modified on 5 
December 2013," after the issuance of the RFE. Wikipedia public! y posts the origin date and editing 
history of its articles, but the petitioner did not submit this information. Given the nature of 
Wikipedia, we cannot presume that the page, and the citation, existed before the director issued the 
RFE. 
A September 10, 2011 handout from the listed several 
study resources, each ranked by survey results. Differential Diagnosis in Surgical Pathology, 2nd 
Ed. , received a survey score of 3.05, corresponding to "Neutral" on a scale of 1 ("Not helpful at all") 
to 5 ("Extremely helpful"). The petitioner showed that he co-wrote a chapter in the Third Edition of 
the book. There is no evidence that used the book's Third Edition as a resource as it had 
previously done with the Second Edition in 2011. 
The RFE response statement asked the director to "take into consideration the improvements [the 
petitioner] has made to the including playing a key role 
in the interdisciplinary meetings where [the petitioner] advises other specialists on appropriate plans 
of action on certain cases." The petitioner's work in did not begin until after he filed the 
petition. An applicant or petitioner must establish that he or she is eligible for the requested benefit 
at the time of filing the benefit request. 8 C.P.R. § 103.2(b )(1). USCIS cannot properly approve the 
petition at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Furthermore, the petitioner did not show that his work in had a significant impact on his field. 
Two professors at the provided letters. Dr. praised the 
petitioner's role in teaching and consultation on difficult cases, but made no claims about the 
significance of the petitioner's work outside the institution. Dr. stated 
that the petitioner had "many accomplishments to his credit " during his career "[p ]rior to joining 
[the] _ 
, " stating, as an example, that the petitioner's "work on round worms is 
well known in the medical community." With respect to his subsequent work in Dr. 
like Dr. focused on the petitioner's teaching duties and "many 
administrative roles." She also cited a projected decline in the number of practicing pathologists, 
which, if true, would tend to be a favorable factor in granting labor certification rather than waiving 
that requirement. 
The petitioner submitted a copy of a letter from 
(no title specified), stating: 
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Please note that she [sic] produced original and groundbreaking research that was 
published as an article in the prestigious 
titled ' 
" Since the article also explains in depth how 
to diagnose rare neuro-helminthic infections, the article is extremely useful in making 
[the] best possible diagnosis on a wide range of parasitic infections of [the] brain. 
Indeed, I have utilized this important research numerous times in my own practice, 
and I am certain that others have as well. 
is a co-author of the identified article, rather than an independent researcher 
influenced by the petitioner's work. 
The RFE response statement indicated that the labor certification process would likely entail 
"lengthy adjudication" because the petitioner intends to combine research and clinical practice. The 
petitioner cited no support for this assertion. Furthermore, the petitioner's past work combining 
research and clinical practice has been in the context of ongoing training at academic institutions 
such as teaching hospitals. The petitioner has not established any prospects of career-level 
employment (as opposed to house staff-level training) that would entail a combination of research 
and clinical medical practice. 
The director denied the petition on March 31, 2014, stating that the petitioner had met only the first 
two prongs of the NYSDOT national interest test, relating to intrinsic merit and national scope. The 
director quoted from the submitted letters and acknowledged the petitioner's participation in 
research, but found that "not . . . every researcher who adds to the general pool of knowledge 
inherently serves the national interest to an extent that justifies a waiver of the job offer 
requirement." The director also noted that the petitioner's published work had earned "minimal 
citations," lending no support to claims regarding the petitioner's influence on his field. 
On appeal, the petitioner submits a statement asserting that he established eligibility by submitting 
"evidence .. . in the form of expert support testimonials, the publications [the petitioner] is credited 
with authoring, as well as documents related to the contributions [the petitioner] is credited with 
making to the pathology field." 
The appellate statement includes the following passage: 
[The petitioner] has demonstrated his remarkable abilities as a medical researcher 
through his influential publications that have been instrumental in educating other 
clinicians including authoring a book chapter in a popular reference book used by 
pathologists preparing for Board examination. [The petitioner's] important work has 
been featured in prominent forums: Only the foremost members of his field have had 
their work presented at such influential forums, which draw nation-and world-wide 
audiences of their peers. [The petitioner] remains active in performing landmark 
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research. Based on his rich history of successes, the medical community eagerly 
anticipates the results of these studies as the multiple letters of support demonstrate. 
The record establishes that the petitioner has published some of his research findings, but it does not 
demonstrate a "rich history of successes" or show that the petitioner's publications have been 
"influential" as counsel claims on appeal. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 r&N Dec. 533, 534 (BrA 1988); Matter of Laureano, 19 r&N 
Dec. 1 (BrA 1983); Matter of Ramirez-Sanchez, 17 r&N Dec. 503, 506 (BrA 1980). 
Regarding the claim that the petitioner co-wrote "a book chapter in a popular reference book used by 
pathologists preparing for Board examination," the petitioner has not shown that his work appeared 
in the Second Edition of the textbook (the edition cited in the handout), or that cited the 
Third Edition as a resource as it had previously done with the Second Edition. 
The appellate statement also indicates that the petitioner has earned an "outstanding clinical 
reputation within the field as an expert pathologist" who "has improved the pathology field" through 
his teaching work and by playing "critical roles at each and every hospital in which he has worked." 
The petitioner's own resume describes most of his past positions as "house staff' training positions. 
users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 r&N Dec. 791, 795 (eomm'r 1988). However, 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. /d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; users may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. users may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 r&N Dec. 500, 502 n.2 (BrA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 r&N Dec. 165. In this 
instance, many of the letters are from individuals who demonstrated no expetiise in the petitioner's 
medical specialty of pathology, and the objective evidence in the record does not support many of 
the claims in the letters concerning the petitioner's reputation and the impact of his work. 
II. Conclusion 
The petitioner was still undergoing fellowship training at the time he filed the petition. He has 
participated in research that has led to published articles and conference presentations over the course of 
this training, but he has not established the impact of this research, or shown that it will continue after 
he completes his training. The petitioner has submitted letters claiming that he has significantly 
influenced his field and earned a widespread reputation as a researcher and as a clinician, but the 
documentary evidence in the record does not support those claims. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
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acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor. " Id. at 218. See also id. at 219, 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 the statute, it was not the intent of Congress that every person qmilified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
We will dismiss the appeal for the above stated reasons. 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, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.