dismissed EB-2 NIW Case: Pediatric Cardiology

(b)(6)
U.S. Department of Homeland Sccul"ity 
U.S. Citi zenship and Immigration Services 
Admini strative Appeals Office (AAO ) 
20 Massachusetts Ave. , N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: NOV 0 4 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
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, 
~l!.~:~~~lraUve Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at 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 is a pediatric cardiology fellow 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 brief and supporting materials, including a new third-party letter. 
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 ..yaiver 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 
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). 
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Supplementary information to regulations implementing the Immigration Act of 1990, Pub. 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 reNew 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. /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 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. !d. 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. !d. 
The USCIS 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 experti se 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on August 15, 2013, with 
a 16-page supporting letter signed by Dr. associate clinical professor at 
Some of this letter concerns the intrinsic merit and national scope of 
research in pediatric cardiology, and the reputation of UCSF as a research institution; these issues 
are not in dispute in this proceeding. Concerning the petitioner 's work , Dr. stated: 
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(The petitioner] is doing nationally important research work on clinical outcomes for 
surgical procedures to correct congenital heart defects in newborns and adults ... . 
Specifically, (the petitioner] is Principal Investigator in a number of important 
research projects in this area. Briefly, the three major projects are: 
1. A major multi-center study ... of outcomes of pulmonary artery angioplasty to 
treat arterial stenosis (arterial narrowing) in children and adults. 
2. A study examining the long-term effects of transcatheter closure of an Atrial 
Septal Defect (ASD - a hole between the upper chamber[s] of the heart) ... . 
3. A study evaluating the use of Balloon Atrial Septostomy (BAS) to stabilize 
newborns with a malformation of the pulmonary artery and aorta known as 
Transposition of the Great Arteries (TGA). 
Dr. provided technical details about the studies identified above. Because the studies 
were ongoing at the time of filing, they had not yet produced findings for publication. Dr. 
also described an earlier project in which the petitioner studied "premature extubation (that is, 
removal of infants from ventilators." She stated that the petitioner 's "research led to change of 
practice in [the] neonatal intensive care unit where the study was conducted, and has been published 
and presented at scientific conferences." She did not indicate that the petitioner's work , once 
published, led to procedural 
changes at other hospitals. 
Several times in her letter , Dr. claimed that no more than ten physicians in the United 
States begin training in pediatric interventional cardiology each year, and she asserted that the 
petitioner's inclusion in this small group is "evidence of his excellence in his field." Dr. 
identified no source for the statistic. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici , 
22l&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasur e Craft of California, 14l&N Dec. 
190 (Reg'! Comm'r 1972)). Furthermore, even if the claimed figure is correct , the small size of the 
group is not, by itself, "evidence of ... excellence"; the petitioner has not established a correlation 
between the number of physicians in a given subspecialty , and the skill required to begin training in 
that subspecialty . 
The etitioner submitted ten shorter letters, most of them from writers with past or present ties to 
_ . where the petitioner trained from 2008 to 2011. 
A number of the writers predicted that the outcome of the petitioner 's current research will 
eventually have a significant impact on the practice of pediatric cardiology. They do not 
demonstrate that the petitioner's past work has had such an effect , which would justify predictions of 
future impact. 
Dr. professor at of which is a teaching 
hospital, stated that the petitioner "is performing high quality research addressing very important 
issues affecting numerous children born with congenital heart disease." Dr. stated: "I feel 
well qualified to assess [the petitioner's] stature in the field," but he did not make any stat ements 
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about that stature, instead predicting that the petitioner's "research will shed more light" on 
important medical issues. 
Dr. associate professor at School of Medicine, speculated about 
the possible impact of the petitioner's ongoing research, but in terms of existing impact, he stated 
only that the petitioner's "findings led to a change in practice in the neonatal intensive care unit 
where he was employed." 
Dr. associate professor at 
research projects, but did not indicate how the 
throughout the field. 
, provided technical details about the petitioner 's 
petitioner's work has affected patient treatment 
Dr. now a lieutenant commander at the 
California, previously trained in a fellowship at Dr. asserted that the petitioner "is 
well-known nationwide for his ground-breaking work in interventional Pediatric Cardiology." Dr. 
described some of the petitioner's ongoing projects and asserted that the petitioner's 
"current research will receive even greater national acclaim than his prior very well-respected and 
constantly referenced research findings have .... He will change the way Pediatric Cardiologists 
manage their patients' [sic] nationwide." Predictions of this sort, however sincere, do not have the 
same weight as verifiable, documentary evidence of the petitioner's existing impact on his field. 
Dr. another former fellow, now practices with the 
in California. Regarding the petitioner's multi-center study, Dr. 
stated: "If the findings of the study are positive, it will lead to nationwide changes in treatment 
protocols" for pediatric arterial stenosis. 
Dr. . now practicing at 
California, was 
also a fellow at She called the petitioner "a leading researcher in a 
number of the most serious genetic cardiovascular defects affecting children in the United States." 
Dr. assistant professor at stated that the petitioner's "research has 
changed the way we treat many patients suffering from the most common, yet serious, congenital 
cardiac malformations," but when discussing the petitioner's individual projects, he stated only that 
they "have the potential to change current practices" or "the potential to alter treatment protocols." 
Dr. clinical assistant professor at School of Medicine, was 
previously the director of the Pediatric Residency Program at Dr. asserted that the 
petitioner's multi-center study "will have [a] major impact on the way [arterial stenosis] patients are 
treated." 
The remaining two writers are at institutions participating in the petitioner's multi-center study. Dr. 
asserted that the petitioner "is well-known for his 
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work in studying the long-term effects of transcatheter closures of an Atrial Septal Defect," and "has 
continually distinguished himself amongst the very best physicians in the world." 
Dr. assistant professor at the has 
collaborated with the petitioner on the multi-center study discussed above. Dr. stated: 
"These studies are extraordinarily uncommon in the field of pediatric cardiology .... This project 
will be of significant clinical impact. [The petitioner] has done an extraordinary job as the principal 
investigator." Dr. asserted that the petitioner's studies "will likely be very significant 
contributions to the field of ... interventional congenital cardiology ." 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however : "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final 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; USCIS 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 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. 165. 
In all, the writers of the submitted letters contend that the petitioner has earned a high place in his 
field, although they base this conclusion largely on conjecture about the eventual outcome and 
consequences of unfinished projects. Because the writers all have ties to the petitioner or to the 
institutions where he has trained, the letters are not evidence of wider impact or influence; some 
writers specifically indicated that the petitioner's work, so far, has affected practices at but 
they did not identify impact beyond this local level. 
Furthermore, the documentary evidence submitted fails to support key claims in the letters. For 
instance, with respect to the claim that the petitioner's past research is "constantly referenced," the 
record shows a total of five citations to his published work- three citations of an article from 2009, 
and one citation each for an article from 2010 and another from 2011. This minimal citation history 
does not, on its face, support a presumption that future publications will have greater impact. 
A section of the initial submission bears the heading "Awards received by [the petitioner] in 
recognition of his excellence in pediatric medicine and research." All of the submitted awards are 
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from limited to residents at that institution. Recognition of this type can provide partial 
support for a claim of exceptional ability under 8 C.P.R. § 204.5(k)(3)(ii)(F), but exceptional ability 
does not establish eligibility for the waiver, as aliens of exceptional ability remain subject to the job 
offer requirement at section 203(b )(2)(A) of the Act. 
The director issued a request for evidence on September 11, 2013, stating that the petitioner ' s initial 
"evidence fails to establish the influence [the petitioner's] work has had on the field," and that his 
"publications appear to have very few independent citations ." The director stated that the petitioner 
had met the intrinsic merit and national scope prongs of NYSDOT , and therefore "it is not necessary 
to include any further evidence regarding the importance of the field in general. " 
In response, the petitioner submitted further details about his ongoing projects at Dr. 
, assistant professor at discussed one of those studies ("Effect of pulmonary 
artery angioplasty on exercise capacity and symptoms in children and adults with unilateral proximal 
artery stenosis"): 
[The petitioner] is creator and Principal Investigator of fthel national multi-center 
study, which is being carried out at 
and our own home institution, 
He is the central figure in the conception and design of 
the study .... [The petitioner's] collaborators are literally a "Who's Who " of leading 
cardiac pediatric researchers. 
The study is ongoing; Dr. did not claim to know its outcome. Instead, he stated: "This 
encouraging line of inquiry could significantly change the treatment options for this type of patient." 
This claim amounts to speculation , and the petitioner has not demonstrated a past history of impact 
to justify such a prediction. 
The petitioner also provided further details about two other ongoing projects and about the 
underlying medical conditions that they seek to address. The director issued the RFE not because 
the petitioner failed to describe his research adequately, but rather because the record did not support 
claims regarding his existing (rather than expected) impact on his field. Information about the 
reputations of participants in the petitioner's multi-center study cannot take the place of the 
necessary evidence. 
The petitioner ' s role in a specific project is not sufficient to establish eligibility for the waiver. See 
NYSDOT, 22 I&N Dec. at 218. Furthermore, the petitioner already holds nonimmigr ant status 
allowing him to work in what is inherently a temporary training position at the lack of 
permanent resident status has not prevented the petitioner from working on the projects discussed. 
The director denied the petition on December 20, 2013, stating that the petitioner has demonstrated 
only "a minimal degree of interest in the [petitioner's] work." The director quoted several of the 
letters submitted in support of the petition , and concluded that the record lacks "definitive evidence 
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of the [petitioner's] work actually being implemented." The director further concluded that the other 
evidence, such as awards from do not significantly 
distinguish the petitioner from others in 
his field. 
On appeal, the petitioner claims to have submitted "ample, compelling evidence ... to establ[is]h 
that [he] is an outstanding research figure whose work has and will continue to serve important 
national benefits." Repeating an earlier claim, the petitioner states that he "is one of literally a 
handful of researchers with advanced experience in the subspecialty , which fact alone is sufficient to 
illustrate his elite status. " As noted previously, the petitioner has not submitted evidence to establish 
either the number of pediatric interventional cardiologists in the United States, or to show that 
physicians in that subspecialty are necessarily superior to other physicians. 
By enacting section 203(b )(2)(B)(ii) of the Act, Congress created an alternative procedure by which 
certain physicians could qualify for the national interest waiver, if they were to practice in a 
designated shortage area or a facility administered by the Department of Veterans' Affairs. The 
petitioner has not claimed to qualify under those provisions. The unsubstantiated assertion that few 
physicians practice in his subspecialty is not a qualifying ground for approving the waiver. 
The appellate brief rests on five points: 
a. The medical issues addressed by [the petitioner 's] research are extremely serious 
and they are also widespread in the United States 
b. [The petitioner's] record of achievement is shown by his position at the 
and the support of that institution, since 
has demonstrated a long-standing commitment to our nation's health 
c. [The petitioner] had led important research projects addressing major issues in 
pediatric interventional cardiology .. . 
d. The series of outside support letters ... show extensive influence on the referees 
and on the field as a whole . . . 
e. [The petitioner's] receipt of awards show[s] that he has been above the level of 
his peers for the entirety of his academic research career 
Point (a) is undisputed, but it is a general statement about the petitioner's occupation and does not 
address the third prong of the NYSDOT national interest test. Regarding point (b), the petitioner has 
not shown a connection between reputation and his own "record of achievement. " As for 
point (c), the petitioner has shown that the research projects address important problems, but this 
does not establish the importance of the projects themselves. As noted previously, the projects have 
not yet produced results, and therefore speculation about their ultimate results is premature. 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.F.R. § 103.2(b)(l). 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') Comm'r 1971). The petitioner, in essence, asserts that 
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users should approve the petition now, and that the future results of the projects will eventually 
justify that approval. 
Point (d) misstates the range of writers of the submitted letters. Their statements do not show the 
effect the petitioner's work has had on the field as a whole (as opposed to individual institutions 
where he has trained). Point (e) likewise mischaracterizes the record. The awards all concern his 
residency at -J and a high level of performance at a teaching hospital does not establish or imply 
wider impact or influence. 
The petitioner submits a new letter from Dr. who discusses details of the 
petitioner's three research projects at and quotes from previously submitted letters. Dr. 
asserts that "the U.S. does not have enough doctors with his skills" and repeats the claim, 
in more general terms, that very few doctors are trained in pediatric interventional cardiology. The 
Department of Labor addresses claims of worker shortages through the labor certification process, 
and therefore an asserted shortage is grounds for obtaining, rather than waiving, labor certification. 
See NYSDOT, 22 I&N Dec. at 218. The exception for physicians at section 203(b )(2)(B)(ii) of the 
Act has specific provisions, outlined at 8 C.F.R. § 204 .12; a physician does not qualify for the 
waiver simply by asserting that few doctors practice in his subspecialty. 
Dr. states: 
In addressing ... [NYSDOTs] "prong three," I wish to bring forward four key points: 
1) [The petitioner's] record establishes a high level of individual achievement, as 
opposed to potential future achievement; 2) Particular aspects of [the petitioner's] 
research career . . . should be re-evaluated; 3) The overall trajectory of [the 
petitioner's] career is highly suggestive that his work will be of national benefit; and 
4) The likelihood of national benefit is what the NYSDOT provisions are designed to 
capture. 
With respect to points 3 and 4, section 203(b )(2) of the Act states that the job offer requirement 
applies to aliens who "will substantially benefit prospectively ... the United States." By the plain 
wording of the statute, benefit to the United States is not sufficient grounds for the waiver; the 
statute presumes such benefit from all foreign workers who qualify for the underlying classification. 
Dr. stated that the petitioner's various projects "are tangible contributions to existing 
treatment protocols used today for cardiac abnormalities in newborns." Regarding one of his past 
projects at Dr. stated that the petitioner has "proposed new treatment protocols ... 
published in the ' The conclusion of that study, as stated in the article, was 
"We speculate that limiting BAS for clinical hypoxemia and aggressive weaning of PGE 1 following 
BAS would improve outcomes. " The journal article, published in , had one citation when the 
petitioner filed the petition in 2013. The petitioner has not shown widespread implementation of the 
new protocols, or reported follow-up studies to demonstrate that what the petitioner described as a 
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speculative recommendation was well-founded. It is the use, not the proposal, of the protocols that 
would demonstrate the petitioner has influenced, rather than sought to influence, the field as a whole. 
In a similar vein, Dr. maintains that the petitioner 's latest work "will have significant 
prospective benefit once it is completed and published ." The outcome of the petition must rest on 
the petitioner's impact as of the filing date, rather than on his employer's expectations of future 
results. Dr. portrays the unfinished and preliminary nature of the petitioner's latest work 
as grounds for lenient consideration, because the petitioner cannot yet produce final results and so it 
is unfair to require them; but this is, instead, a basis for concluding that the waiver request is 
premature. If the petitioner's high expectations for the projects prove to be justified, those results 
can provide support for a future petition at a time when the results are available. 
Dr. asserts that the works of the petitioner ' s collaborators "have been cited a total of 257 
times." In this way, she acknowledges the significance of citation as a measure of the impact of 
published work, but states that it is "unreasonably restrictive" to base a decision on the petitioner's 
own low number of citations . Dr. also states that the petitioner's leadership of a project 
that features such distinguished researchers is, itself , evidence of the petitioner's existing impact on 
his field. This claim of influence by association is not persuasive. Eligibility must rest on the 
petitioner's own qualifications , rather than those of his collaborators. 
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 
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." !d. 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 qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not 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.