dismissed EB-2 NIW Case: Podiatry

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ojAdministrative Appeals MS 2090 
Washington. DC 20529-2090 
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. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
din*:$ 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The director later moved to reopen the proceeding and allow the petitioner an opportunity 
to submit additional evidence. The director then denied the petition a second time. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a podiatrist. 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 from counsel and copies of witness letters. 
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 
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., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29,1991), states: 
The Service [now U.S. Citizenship and Immigration Services] 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comrnr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of hture benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the hture, 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 alien, rather than to facilitate the entry of an alien with no 
demonstrable prior achevements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. fj 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 offedlabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on August 20, 2008. In a letter submitted with the initial filing of the 
petition, the petitioner stated: 
I am a Podiatrist . . . and I intend to work in DeRidder, Louisiana, to serve the podiatric 
needs of this and the surrounding communities, including the many veterans returning to 
Fort Polk fiom Afghanistan and Iraq. My training makes me uniquely well qualified to 
provide the medical care they need. Accordingly, my work is in the national interest. . . . 
Soldiers suffer from many Podiatric problems. . . . The stress on a soldier's feet and 
ankles is quite similar to that experienced by athletes, and they suffer similar podiatric 
problems. 
This employment is clearly in an area of substantial intrinsic merit. Healthy feet and 
ankles are clearly essential to a person's well being, and serving the Podiatric medical 
needs of US soldiers returning from combat duty in Afghanistan and Iraq is certainly an 
area of substantial intrinsic merit. 
Second, the benefit of my work in DeRidder is national in scope. Improving Podiatric 
these communities and for the soldiers clearly has a national benefit. . . . 
The Podiatric care that they receive has a direct and significant impact upon this 
country's military operations in Afghanistan and Iraq, enabling these brave soldiers to 
return to duty at posts around the world and across the US, or allowing them to return to 
productive, happy civilian lives throughout this country. 
The petitioner's assertion regarding the national scope of his work is not persuasive. His impact as a 
clinical podiatrist would be limited to the patients he personally treats, which is a negligible number on 
a national level, whether those patients are soldiers or civilians. 
As for why the petitioner would serve the national interest to a greater extent than others in hs field, the 
petitioner states that his training in sports medicine is applicable to military patients because ''[tlhe 
Podiatric problems experienced by athletes are quite similar to those of combat soldiers." The petitioner 
also asserted that he wrote "an important scholarly article that has been accepted for publication in 
Podiatry Today." The petitioner explained that he "found that people with hgh arch feet were quicker 
than those with flatter arches. . . . This has obvious important implications in podiatry, athletics, shoe 
design, etc." 
Published scholarly research can have national scope because of the dissemination of research findings. 
What the petitioner described, however, was not a scientific research study. In the Podiatry Today 
article, the petitioner wrote: "Just to be clear, this connection between arch height and specific athletic 
abilities is based on anecdotal observation. It is currently not supported by any study published at this 
time." 
Two witness letters accompanied the initial filing of the petition. of Bany 
University School of Podiatric Medicine stated that the petitioner's "slulls and abilities greatly exceed 
those of the average Podiatrist," and claimed "[tlhere are fewer than 10 Podiatrists in the entire country 
with his skills and training in podiatric sports medicine." 
stated that the petitioner's "services will be highly beneficial for . . . military personnel" at the site. 
Page 5 
The director denied the petition on January 29, 2009, stating that the petitioner had not shown that he 
"plays a significant role in influencing the field of podiatry." On March 2, 2009, the director reopened 
the proceeding and afforded the petitioner the opportunity to submit further evidence to support his 
claims. In response, the petitioner submitted a manuscript entitled "Preliminary Study on the 
relationship between foot type and Athletic ability," which reports the foot measurements and 
performance data for thirteen male soccer players. The record contains no evidence that any scholarly 
journal accepted the petitioner's article for publication, or even that the petitioner submitted the article 
for consideration. 
The petitioner also showed that he gave a half-hour presentation at the 2008 Day of Sports Medicine 
Seminar at Bany University, Miami, Florida, while he was studying there under a podiatric sports 
medicine fellowship. 
The bulk of the petitioner's response consisted of further witness letters. 
 in his second 
letter. repeated his claim that "fewer than ten people in the entire world . . . have [the petitioner's1 
, A A. 
qualifications," but he did not specify what he meant by "qualifications." Given 
 assertion 
that Barry University has "the only Podiatric Sports Medicine program in the world approved by the 
Council on Podiatric Medical Education," he may have meant that the petitioner is one of on1 ten with 
a particular combination of degrees and training in Barry University's program. did not 
indicate what the petitioner has achieved as a podiatrist that could not have been achieved by a peer 
- - 
with different "qualifications." 
claimed that the petitioner's "research on the connection between arch height and athletic 
abilities . . . has far reaching influence on the practice of podiatric sports medicine." did not 
identify any specific signs of this influence, however. His assertions (i.e., "podiatrists can now help to 
design shoes and other equipment to enhance an athlete's performance") amount to speculation about 
potential hture influence; they do not show that the petitioner's work has already affected the practice 
of podiatry, sports medicine, or shoe design. We reiterate here that the petitioner himself referred to hs 
findings as "anecdotal" and "preliminary," and there is no evidence that the petitioner's work has ever 
been subjected to peer review. The record does not support 
 claims of "far reaching 
influence." 
The assertions o 
 , an Assistant Professor at Barry University, are similar to 
claims. 
 refers to the petitioner's "significant influence [in his] field," his 
"important research project investigating the correlation of arch height, athletic maneuvering and 
injury," and the asserted similarity between sports-related and military foot problems. 
The petitioner submitted letters from several podiatrists. They all claim that the petitioner is among the 
best in the field, but they all have close ties to the petitioner. of Leesville, 
Louisiana "fill[s] in for7' the petitioner. Assistant Professor - of the University of 
Texas Southwestern Medical Center, "was a year ahead of [the petitioner] in the Podiatric Sports 
Medicine Fellowship of Barry University and The University of Texas Health Science Center San 
Antonio Podiatric Residency program, which is how I got to know him." - of 
Miami, Florida, is "the staff podiatrist for eight nursing homes and numerous Assisted Living Facilities. 
Last year [the petitioner] assisted me in one of these nursing facilities with my patients." - 
Chief of Podiatry at Central Texas Veterans Healthcare System, "served as the Residency 
Director for Podiatric Medicine during [the petitioner's] three year training at the University of Texas 
Health Sciences Center at San Antonio." The subjective opinions of witnesses close to the petitioner 
cannot be considered authoritative evidence of consensus within the field. Although several witnesses 
have asserted that the petitioner is among the best-trained in his field, we cannot ignore that these 
witnesses were the ones who provided that training. 
Athletic Trainer and Travel Coordinator for the Miami Heat basketball team, stated: 
While he was a Fellow in Barry University's program, [the petitioner] served the 
Podiatric needs of the Miami Heat. He did tremendous work for the team, exceeding 
that which I would have expected from similarly qualified Podiatrists. He helped the 
athletes prepare for games, treated their podiatric issues, helped to design shoes and 
insoles to enhance their performance on the court and treated them at the arena, in the 
clinic and in the operating room. 
It is not surprising that a basketball team would be better served by a podiatrist with specialized training 
in sports medicine than by a podiatrist laclung such training, but this speaks to the value of the training 
rather than to the petitioner individually. Special or unusual knowledge or training does not inherently 
meet the national interest threshold. The issue of whether similarly-trained workers are available in the 
U.S. is an issue under the jurisdiction of the Department of Labor. Matter of New York State Dept. of 
Transportation at 22 1. 
Assistant Athletic Trainer at the University of Miami, "worked with [the petitioner] who 
provided podiatric services to the university's athletes." 
 stated that the petitioner provided 
orthotics that helped an unnamed athlete who "has had various injuries for years that are the result of 
poor biomechanics." 
The director denied the petition on April 6, 2009, stating that while the petitioner has had a successfU1 
career thus far, he has not established a degree of influence and impact on his field that would justify a 
national interest waiver. The director noted that the petitioner's witnesses are concentrated within one 
geographic region of the United States, and asserted: "Generally, those selected for an NIW waiver [sic] 
have decades of experience." 
On appeal, counsel stated that the director "applies an inappropriate standard of review, requiring [the 
petitioner] to have decades of experience." The director did not state that "decades of experience" were 
required to qualify for the waiver; the director stated only that aliens who qualified for the waiver 
tended to be more experienced. This is an observation, rather than a requirement. We will not 
comment on thls observation except to note that the director did not provide statistical data to support 
the claim. The director appears to have made this observation because the petitioner's claim of wide- 
Page 7 
ranging influence rests primarily on a single unpublished manuscript and a preliminary article in which 
the petitioner admitted that his findings were "anecdotal observations . . . not supported by any study." 
Counsel asserts that the petitioner's work is national in scope, because the petitioner's military patients 
can "better use their feet and ankles in active military duty or in civilian roles across the country." This 
is not a persuasive argument. Even when a given occupation is of national importance, it does not 
follow that one alien's work in that occupation is national in scope. The impact of an alien who works 
with small numbers of people is so attenuated at the national level as to be negligible. See Matter of 
New York State Dept. of Transportation at 2 1 7, n.3. 
The petitioner can only treat so many patients, and the hypothetical assertion that some of these patients 
may scatter to other parts of the country does not establish that the petitioner's work is national in scope. 
Even if the petitioner's patients were to distribute themselves throughout the United States, they would 
amount to a negligible proportion of the population. Furthermore, once those patients leave the 
petitioner's vicinity, more than likely, they cease to be his patients. His ongoing impact is limited to the 
immediate area. If we were to conclude that the petitioner's work is national in scope because hs 
patients might move to other areas, then the "national scope" test would become meaningless, because 
anyone could meet it simply by stating that their clients, patients, or collaborators might one day 
relocate. 
After the publication of Matter of New York State Dept. of Transportation, Congress recognized that 
clinicians engaged in individual patient care cannot meet the "national scope" test. Congress therefore 
enacted section 203(b)(2)(B)(ii) of the Act, making the waiver available to certain physicians practicing 
in medically underserved areas and hospitals administered by the Department of Veterans Affairs. 
Congress could have expanded this provision to cover other health care workers who come into contact 
with military personnel, such as podiatrists in the vicinity of military facilities, but did not do so. 
Therefore, we cannot conclude that Congress created a blanket waiver for podiatrists whose patients 
include soldiers from nearby installations. 
Counsel's arguments on appeal simply repeat previous claims, such as the contention that the petitioner 
"performed an original and significant research project." The record, however, contains no credible, 
objective evidence to support the claim that the petitioner's work is more important or influential than 
that of countless other trained podiatrists. The witnesses who call the petitioner one of the nation's top 
podiatrists have all worked with him; there is no evidence that this opinion is more widely shared. 
The petitioner submits copies of several letters. Most of these letters were submitted previously, the 
only exception being a letter from, Dean of the College of Podiatric Medicine 
at Western Universitv of Health Sciences. Pomona. California. This letter is not evidence of a wider 
. -- 
reputation, because 
 states that he used to be the "Podiatry residency program director at 
University of Texas Health Science Center. . . . During this time, I had the pleasure of working with [the 
petitioner] on a daily basis." This letter continues the trend in whch the people who trained the 
petitioner praise the high quality of the petitioner's training. 
Page 8 
The record establishes little except that the petitioner has clearly impressed those who trained and 
worked with him. As we have already noted, exceptional ability (a degree of expertise significantly 
above that ordinarily encountered) is not sufficient grounds for a national interest waiver, but the 
petitioner has not persuasively exceeded that standard. Witnesses have indicated that the petitioner has 
the opportunity to influence his field (for example, through research), but the record shows that such 
influence has yet to manifest itself. 
As is clear from a plain reading of 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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 136 1. The petitioner has not sustained that burden. 
This decision is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.