dismissed EB-2 NIW Case: Psychiatry

(b)(6)
DATE:NAR 1 3 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~-~An~l~~ 
~~Rose~tk~J 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The AAO dismissed the petitioner's appeal. The matter is now before the AAO on a motion 
to reopen and reconsider. The AAO will grant the motion to reopen, dismiss the motion to reconsider, 
and affirm the denial of the petition. 
The petitioner seeks to classify the beneficiary under section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences .and 
business. The petitioner is a hospital that seeks to employ the beneficiary as a unit chief in the 
petitioner's psychiatric unit. At or around the time of filing, the beneficiary was a staff psychiatrist at 
the petitioning hospital; an assistant clinical professor at 
and consultation liaison at , , and a research staff psychiatrist at 
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 beneficiary 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. The AAO's dismissal order expressed the same 
conclusion. 
At the time the petitioner filed the petition, the attorney of record was In this 
decision, the term "prior counsel" shall refer to and the term "counsel" shall refer to 
the petitioner's present attorney of record. 
On motion, the petitioner submits a brief from counsel and supporting exhibits, including background 
information and witness letters. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.P.R. § 103.5(a)(2). A motion to reconsider must state 
the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that 
the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services 
(USCIS) policy. A motion to reconsider a decision on an application or petition must, when filed, also 
establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.P.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.P.R.§ 103.5(a)(4). 
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 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
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 beneficiary qualifies for classification as a member of the professions holding an advanced degree. 
At issue in this proceeding is whether the beneficiary qualifies for a waiver, in the national interest, of 
the statutory job offer requirement. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comrn'r 1998) 
(NYSDOI), has set forth several factors which must be considered when evaluating an application 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 petitioner filed Form I-140, Immigrant Petition for Alien Worker, on July 30, 2012. The director 
denied the petition on April 25, 2013, stating that the petitioner had not established the petitioner's 
impact and influence on the field to meet the third prong of the NYSDOT national interest test. The 
AAO dismissed the petitioner's appeal on October 21, 2013; the appellate decision contains further 
details regarding the proceeding. 
On motion, counsel states: 
The beneficiary ... was initially hired in September of 2011 as a result of his past 
professional services that included serving as a research clinical psychiatrist for [a] study 
conducted under the auspicious [sic] o _ that claimed it had 
improved patient care while reducing length of stay for psychosomatic patients. 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
Petitioner asserts that as a result of this past performance, the beneficiary deserves a 
National Interest Waiver to continue his work. The petitioner's line of reasoning is as 
follows[:] 
There is a pressing need for more and better mental health counseling. Consultation 
liaison psychiatry seeks to meet that need in the hospital and clinic setting. Behavioral 
Intervention Team (BIT) is a newly developed and highly promising approach for 
delivering these psychiatric services. The beneficiary . . . through his work as an 
"outstanding clinician" has assisted in the development of the Behavioral Intervention 
Team, [and] has thus "contributed to and had an important impact on patient care in the 
United States." 
Regarding the "pressing need for more and better mental health counseling," counsel states: "recent 
surveys show only about 50,000 psychiatrists in the United States, a number that is already too few to 
care for the existing number of people seeking treatment." Counsel cites copies of news articles relating 
to the stated shortage of psychiatrists. 
In the October 2013 decision, the AAO had addressed the shortage issue, stating: 
Even if the petitioner had documented the numbers claimed, such shortages are not 
grounds for granting the waiver under NYSDOT. See id. at 218. Section 
203(b )(2)(B)(ii) of the Act states that physicians in an area or areas designated by the 
Secretary of Health and Human Services as having a shortage of health care 
professionals may qualify for the waiver under certain circumstances. users 
regulations at 8 C.P.R. § 204.12 detail the requirements for such waivers .... 
The petitioner did not submit the evidence required under the regulations cited above. 
Instead, prior counsel l _ contended that the beneficiary qualifies under 
NYSDOT. 
A motion to reconsider must establish that the decision was based on an incorrect application of law 
or users policy, and that the decision was incorrect based on the evidence of record at the time of 
the initial decision. See 8 C.P.R. § 103.5(a)(3). A motion to reconsider based on a legal argument 
that could have been raised earlier in the proceedings will be denied. See Matter of Medrano, 
20 I&N Dec. 216, 219-20 (BIA 1990, 1991). Counsel, on motion, has not established that the 
dismissal notice was in error. The repeated assertion that there is a shortage in the petitioner's field 
is not grounds to reopen the proceeding or reconsider the dismissal of the appeal. 
The motion includes a December 20, 2013 letter from , the petitioner 's vice president of 
human resources , stating that the petitioner "is in a geographical area designated by the Secretary of 
Health and Human Services as a medically underserved area." This letter does not suffice to meet the 
evidentiary requirements set forth at 8 C.P.R. § 204.12 for shortage-based physician waivers. Also, the 
petitioner had not previously attempted to meet those evidentiary requirements. USCIS has already 
adjudicated the petition and an appeal from the denial of that petition. At this late stage in the 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
proceeding, the petitioner cannot move to reopen the proceeding for a new adjudication for a shortage­
based waiver instead of a NYSDOT-based waiver. A petitioner may not make material changes to a 
petition that has already been filed in an effort to make an apparently deficient petition conform to 
USCIS requirements. See Matter of Izummi , 22 I&N Dec. 169, 175 (Comm'r 1998). 
Counsel describes the beneficiary's subspecialty within the field of psychiatry . This information 
establishes the intrinsic merit of the beneficiary's occupation, but does not meet the other prongs of the 
NYSDOT national interest test. There exists no blanket waiver for foreign workers in the beneficiary's 
subspecialty, apart from the shortage-based provisions discussed above for which the petitioner has not 
submitted the required evidence. 
The dismissal notice included the following passage, which referred to a letter from 
director of the 
The beneficiary's work as a clinician lacks national scope because it benefits a limited 
number of individual patients under his direct care. did not claim that the 
beneficiary' s work has produced wider benefits. Rather, he speculated about the future, 
stating: "I expect [the beneficiary] to contribute not only as a clinician but as a 
researcher able to advance the field of consultation liaison psychiatry." He did not 
indicate, however, that the beneficiary was engaged in research at _--_;-~ or that the 
beneficiary had conducted research in consultation liaison psychiatry. Rather, r 
stated without elaboration that the beneficiary has a "background in research." 
Counsel, on motion, states: 
The issue is how the beneficiary's work affects the mental health system ... . 
It seems inconsistent with recent history to take the position that providing desperately 
needed mental health care is not "national in scope." . IS 
located in - - - . . . less than 60 miles from 
L ~ - _ where on December 15, 2012, 20-year-old 
_ suffering from an[]untreated psychiatric condition, murdered 20 children. Less 
than 25 miles from where [the beneficiary] performed his clinical studies that lead [sic] 
to the issuance of the papers on BIT [Behavioral Intervention Team]. 
There was no finding that mental health care, on the whole, lacks national scope. The dismissal notice 
indicated, rather, that one psychiatrist's clinical practice did not appear to produce benefits that are 
national in scope. NYSDOT makes the distinction between the overall importance of an occupation and 
the local impact of one worker in that occupation, at 217 n.3. 
Counsel fails to explain how a mass shooting "[l]ess than 25 miles from where [the beneficiary] 
perfonned his clinical studies," after the beneficiary performed those studies, demonstrates that the 
beneficiary's work has produced, 
and will continue to produce, benefits over a wide geographic area. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Counsel also does not explain why the beneficiary's proximity to establishes the national 
scope of his clinical work. Conducting and disseminating research has national scope, but the petitioner 
has not shown that the beneficiary will conduct research in the future. The beneficiary himself signed 
Form ETA-750B, Statement of Qualifications of Alien, which contained the following description of 
his duties at the petitioning hospital: "Oversee psychiatric and medical care provided to patient on 
intermediate length of stay in patient care psychiatric unit." Medical research produces benefits that are 
national in scope, but the record does not show that the beneficiary has performed medical research . It 
indicates, instead, that the petitioner has performed clinical duties, treating patients who, at the time, 
were enrolled in a research study. 
New solutions to mental health problems, nationally implemented, would benefit the entire United 
States. Much of the motion, therefore, emphasizes the BIT as a proposed solution. Counsel states: 
"The Behavioral Intervention Team, developed by the - · - - · · is a new approach 
that seeks to provide a more proactive consultation approach to treating Psychosomatic Medicine." The 
October 2013 dismissal 
notice addressed the petitioner's claims regarding the BIT: 
There is no evidence that the beneficiary is responsible for developing the concept of the 
BIT. Rather, • , _ asserted that the beneficiary "did outstanding 
work for L in our innovative and newly established Behavioral Intervention 
Team. " ... Exhibit A, a newsletter from web site, credited Prof with 
developing the BIT at · ,vork with the 
program, but did not mention the beneficiary . 
. 
. . The record does not say where the BIT concept originated, and therefore the record 
does not show whether Yale created the concept or was simply among its early adopters. 
Counsel states: 
The argument that the application fails to provide proof that · developed the concept 
of the BIT program would appear to be irrelevant. ... The issue is whether the study 
advances the field of psychosomatic medicine in a significant way and whether [the 
beneficiary] had an impact on the success of that study and thereby on the field as a 
whole. 
The BIT's origin is relevant because creation of an important new technique has greater impact on the 
field than learning an existing technique developed by others. An alien's job-related training in a new 
method cannot be considered to be an achievement or contribution comparable to the innovation of that 
new method. See NYSDOT at 221, n.7. If the beneficiary was not among those who conceived the idea 
of the BIT, or who were directly responsible for its widespread adoption, then general statements about 
the importance of BITs relate only to the "intrinsic merit" prong of the NYSDOT national interest test. 
There is no blanket waiver for foreign workers familiar with the BIT concept, regardless of how many 
or how few foreign workers fit that description. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
After claiming that the origin "of the BIT program would appear to be irrelevant," counsel claims that 
the beneficiary was part of the program's development. Counsel reiterates the intrinsic merit of BITs 
and states: "it seems reasonable to conclude that the individual whose clinical studies was [sic] 
instrumental in developing the BIT approach would be serving the national interest to a greater extent 
than others in the profession." 
In a new letter, dated December 20, 2013,: discusses the origin of the BIT: 
This is an innovative approach that has not been carried out in other settings or reported 
before we began to do so in the Fall of 2006. During that time we tried a 6 week 
experiment which is summarized in the attached publication .... Because of the success 
of the pre-pilot on the length of stay which is demonstrated in this publication, we 
implemented a pilot of the program in three medical units which covered the end of 
Fiscal year 2009-Fiscal year 2010. By the way, this publication won the award [from] 
the American Academy of Psychosomatic Medicine for the best paper published in 
Psychosomatics in 2011. ... 
The program continues to evolve and change but the basic idea stays the same .... 
Based on these results, other settings have expressed interest in what we do .... So, the 
program is real, it did start with us, and it is being implemented in other settings. 
refers several times to "the attached publication," but the submission on motion includes 
no publication matching the description in the letter. The submission does include a printout of an 
electronic slide presentation that r - o , • · • '~ •· ' on November 27, 
2012. That presentation showed part of the first page of a 2011 article from with the title 
[ t 
Medical Team." The mticle listed five authors, including ) _ . but the beneficiary is not a 
credited co-author. Counsel asserts that the beneficiary's "name is conspicuously mentioned in the 
presentation made by ' The beneficiary's name appears once in the 32~page presentation, as 
one of four members of the "Clinical Team." 
-_ does not state that the beneficiary helped to develop the BIT, and the above chronology 
indicates that the beneficiary did not do so. The beneficiary's own resume indicates that he left -- . 
after completing a fellowship in September 2002, and did not return until almost nine years later in 
August 2011. This timeline would indicate that the beneficiary was not at for the program's 
inception in 2006 or for the pilot studies in 2009-2010. : does not credit the petitioner with 
initiating the idea or making significant improvements to it. He states: "[the beneficiary] in his role 
with us was very helpful in grasping this concept early and being a strong advocate for it and helping us 
put it forward." 
The petitioner submits a letter, dated December 16, 2013, from , director of the 
- -- -- - Most of 
~---------------------------------------
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
this letter repeats earlier letter, dated July 18, 2012. , has inserted two new ___ __. 
paragraphs, which read as follows: 
[The beneficiary] is also a skilled researcher. During the period of our work with us 
between 2011 and 2012, he participated in developing a new approach to consultation 
psychiatry in the general hospital. In usual models, the psychiatric consultation team 
waits for requests for assistance from medical teams caring for patients. The result is 
that psychiatric issues may not be recognized or may be recognized after a delay. This 
yields poorer clinical care and sometimes lengthening of hospital stay. In the new 
approach, all patients are screened for psychiatric issues and appropriate care is provided 
immediately. During the 2011-2012 period, we believe that we developed at 
_ a method of accomplishing such "proactive" patient care in an efllcient 
and feasible fashion. [The beneficiary] worked with us in devising new modes of 
patient care: during this year we tested multiple methods of screening patients based on 
review of the medical record, discussion with medical team, or brief exam, using 
nursing, social work or physician staff members[. The beneficiary] assisted in 
developing different assessment protocols, supervising their implementation, and also 
assessing the effectiveness of these protocols by providing the "gold standard" of 
assessment by an experienced psychiatrist. I should note that [the beneficiary] was here 
many hours more than his scheduled shifts in contributing to this research project and to 
the care of his patients. 
The specific results of work during this year are currently being prepared for 
publication, and will recognize his contribution. Our results have attracted not only 
national but international attention. We were recognized by a national award from the 
. . for this work. This fall, our method was the 
subject of a symposium at the - _ , a national meeting 
sponsored by the . , Our method has also been the 
subject of invited symposia at international meetings (most recently, the annual meeting 
of the · · · · 
in July of 2013 and the -in September of 2013). 
Representatives from mu tiple hospitals have v1s1ted our hospital to learn about our new 
approach , and this method has been adopted in multiple hospitals in the United States. 
The work that [the beneficiary] contributed to has had an important impact on patient 
care in the United States. 
The two letters described above indicate that the petitioner played a role in helping to test the BIT 
model, but not in developing or shaping it. There is no indication that the BIT program would have 
turned out differently if another psychiatrist had taken the beneficiary's role in the testing stages. 
The dismissal notice discussed "f aln unsigned letter attributed to associate clinical 
professor at _ _ _ _ _ ·-- , 
letter did not specify the nature or extent of the beneficiary's participation in the studies described." 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
The petitioner's motion includes a signed copy of ~ letter (dated July 20, 2012), as well as 
what counsel called "an additional letter that provides more details regarding [the beneficiary's] 
participation." In the second letter dated June 21, 2013, in which J stated: 
[The beneficiary] has been involved in clinical research trials conducted at 
. His role was sub investigator and therefore his name does not 
appear on the publications. 
In addition to the cited article, studies funded by , 
have been conducted while [the beneficiary] was working with me. 
This letter contains no further substantive details about the nature of the beneficiary's work , except the 
assertion that, as a "sub investigator," the beneficiary's contributions did not warrant co-author credit on 
publications resulting 
from the research. 
In the appellate brief, counsel had stated that "the decision by the Service ignores evidence in the 
record and a line of precedent decisions by the AAO." In the dismissal notice , the AAO stated: 
"Counsel does not identify the 'line of precedent decisions by the AAO.' NYSDOT is the only 
precedent decision that directly addresses the national interest waiver." On motion, counsel states: 
"We misspoke . There is a line of non-precedent decisions on which we based that statement." 
The petitioner submits an article published by the _ . m 
which attorneys summarized "10 successful cases [their] office 
has handled since NYSDOT's designation" as a precedent in 1998. The article describes approvals at 
the service center level (issued without written decisions), rather than "decisions by the AAO" as 
counsel had claimed. Rather, all of the approvals were at the service center level. Service centers, 
unlike the AAO, do not issue a written decision to accompany the approval of a petition. None of 
the cited approvals had binding precedential authority. Only published precedent decisions are 
binding on USCIS employees in the administration of the Act. See 8 C.F.R. § 103.3(c). 
Other assertions on motion address peripheral points that did not determine the outcome of the petition, 
and which counsel attributes to error by prior counsel. For example, prior counsel had stated that the 
beneficiary's combined training "in child psychology, addiction psychiatry and consultation liaison 
psychiatry ... is extremely rare as only seventy (70) individuals train in this area each year." Prior 
counsel also claimed that "less than 69" individuals in the United States practice in the beneficiary 's 
specialty. These claims are contradictory, because if the field produces 70 new trainees each year, 
the total number practicing would be higher, not lower, than 69. Counsel, on motion, states: 
"Although we cannot speak to the representations of prior counsel , it is a fact that the . · ___ :_ ____ J _: 
.1ecognizes on average, less than 70 fellowships in this field per yeaL" The 
petitioner submits a list of 53 "fellowship trainees" for the 2012-2013 academic year. Even at a rate 
of approximately 50 trainees per year, the total number practicing would not be "less than 69" 
barring a high rate of attrition that the petitioner has neither claimed nor established. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
The motion does not establish that the decision was based on an incorrect application of law or USCIS 
policy or that the decision was incorrect based on the evidence of record at the time of the initial 
decision . Therefore , the motion does not qualify as a motion to reconsider under the USCIS regulation 
at 8 C.F.R. § 103.5(a)(3). The motion does, however, include relevant new evidence that satisfies the 
regulatory requirements for a motion to reopen at 8 C.F.R. § 103.5(a)(2). Nevertheless, the new 
evidence does not show that the petition was approvable at the time of filing or that new facts justify the 
petition 's approval now. The denial of the petition will be affirmed. 
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 Otiend e, 26 l&N Dec. 127, 128 
(BIA 2013) . Here, the petitioner has not met that burden. 
ORDER: The AAO 's decision of October 21, 2013 is affim1ed. The petition remain~ denied .