dismissed EB-2 NIW Case: Psychiatry

(b)(6)
DATE: JUL 1 5 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
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: 
SELF-REPRESENTED 
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, 
1 Ron Rosenb g 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO 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 orofessions holding an advanced degree. The 
petitioner seeks employment as a psychiatrist at 
New York. 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. 
Before the filing of the appeal, attorney represented 
the petitioner. The petitioner signed the Form I-290B, Notice of Appeal or Motion, and Ms. 
signed an accompanying statement. The appeal, however, does not include a newly executed Form 
G-28, Notice of Entry of Appearance as Attorney or Representative, to indicate that Ms. 
continues to represent the petitioner, as required by the U.S. Citizenship and Immigration Services 
(USCIS) regulation at 8 C.F.R. § 292.4(a). The AAO contacted Ms. by facsimile on May 
30, 2013, to inform her that the AAO could not consider her to be the petitioner's attorney of record 
unless she submitted the Form G-28 within 15 days. The record contains no response to the notice. 
Therefore, the AAO will therefore consider the petitioner to be self-represented, and the term "prior 
counsel" shall refer to Ms. 
On appeal, the petitioner submits statements from himself and from prior counsel. 
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. 
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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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 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 Dept. of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set 
forth several factors which must be considered when evaluating a request for a national interest waiver. 
First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. 
Next, the petitioner must show that the proposed benefit will be national in scope. Finally, the 
petitioner must establish that the alien will serve the national interest to a substantially greater degree 
than would an available United States worker having the same minimum qualifications. 
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. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
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 expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
(b)(6)
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Page4 
The petitioner filed the Form I-140 petition on August 12, 2010. The petition included a statement 
signed by attorney (head of the firm that employs prior counsel) which read, in part: 
The expansive scope of [the petitioner's] salient c~ntributions encompasses not only his 
immediate field of psychiatry, but also the medical community at large, both nationally 
and internationally. His original research has already had a direct impact on the field 
and has gained him nationwide recognition. Through his many publications and 
presentations, [the petitioner] is not only reaching a large and distinguished audience, 
but he is in fact reaching countless leading physicians and specialists in the field 
throughout the country. He is therefore having a profound and direct impact in his field . 
. . . Furthermore, he has had his work published in journals and presented at conferences 
that are national and international. ... 
In addition, [the petitioner] frequently treats patients from different parts of the country 
on referral. He has worked at tertiary facilities that are constantly referred patients from 
various regions throughout the country. Because he is able to perform such advanced 
medical and diagnostic procedures that only a very small percentage of his peers are able 
to perform, he is called on to treat patients from around the country. In addition, he is 
constantly teaching the use of his skills to both junior and even senior peers. As such, he 
is creating a ripple effect that is making the performance of these procedures more 
widespread nationally. 
Mr. provided no details and cited no evidence to support the above statements. The 
unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Similarly, Mr. asserted that the petitioner's "ability to master state-of-the-art technologies and 
complex research techniques" qualify him for the waiver, but he did not identify any such technologies 
or techniques. The petitioner's own 14-page curriculum vitae does 'not indicate that his duties at 
where he has worked since 2004, involve either research 
or "state-of-the-art technologies" The petitioner's description of his own duties indicates a narrow 
focus on individual patient treatment. The only research experience that the petitioner claimed was a 
year of "Alzheimer's Research" at 
Regarding Mr. 's assertion that the petitioner "has had his work published in journals and 
presented at conferences," the petitioner identified two such items in his curriculum vitae: 
• 
(b)(6)
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Page 5 
• 
The petitioner submitted photocopied pages from , consisting not of a chapter on 
seizures, but two appendices. One appendix consisted of "Important Telephone Numbers," while the 
other was a list of "Normal Laboratory Values." Regarding his claimed chapter in 
the petitioner did not establish that the second edition remains in use, or, in the alternative, that any 
subsequent editions of the book have continued to include his chapter. The other named paper, 
identified but evidently not submitted, apparently dates from the petitioner's clinical 
training at 
before he specialized in psychiatry. Anemia is a 
blood disorder, and its diagnosis does not appear to be the responsibility of psychiatrists. 
Mr. stated that the petition included "Letters of Support from independent experts nationwide 
... both from institutions at which [the petitioner] has worked and institutions at which he has not 
worked." Despite this claim, only one letter is from a witness outside of New York City. That witness, 
Dr. was director of the • _ . _ _ 
California when he wrote his letter on the petitioner's behalf. From 1998 
to 2001, however, he worked in a similar program at 
overlapping with the petitioner's residency there from 1996 to 2000. 
All but two of the letters are from late 2002 and early 2003, originally written in support of an 0-1 
nonimmigrant petition filed at that time. The letters show a number of overall similarities in terms of 
style and structure. For instance, Dr. assistant professor at 
stated: 
In recognition of his extraordinary talent and credentials, [the petitioner] also earned 
memberships in prestigious medical societies. These include the respected and 
renowned 
Indeed, to be selected to such an impressive array of professional societies 
is testament to [the petitioner's] outstanding abilities as one of a very few at the top of 
the field. 
Dr. . identified above, stated: 
Because of his extraordinary abilities, he ... has been selected for membership to some 
of the most respected and renowned societies in the world. These societies include 
.. Indeed, 
[the petitioner's] membership and leadership roles in such an array of organizations are 
distinct honors and testament to his extraordinary skill, ability, and expertise. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Dr. chief of offered a 
generally similar evaluation: 
Not only did he win the admiration of his colleagues, he also won admissions into some 
of the most elite medical organizations in the world, including 
All of the quoted witnesses italicized the names of the organizations and indicated that the petitioner's 
memberships are signs of his standing in the field. None of the witnesses, however, discussed the 
organizations' admission requirements, which is highly relevant to the credibility of their claims. If one 
can join a given organization simply by working in a particular field and paying annual dues, for 
example, then such a membership is not a particular mark of distinction as the witnesses claimed. 
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)). 
One of the two witness letters dated after 2003 is a February 26, 2009 letter from Dr. 
director of s letter follows many of 
the patterns found in the earlier letters. For instance, relating to the petitioner's memberships in medical 
associations, Dr. stated: 
[The petitioner] has distinguished himself from the vast majority of his peers through 
membership in some of the most prestigious medical organizations in the world. [The 
petitioner] is one of the elite physician-scientists in the United States who is a member 
of the [sic] [The petitioner] is also member of the 
Memberships in these prestigious organizations are only awarded to those 
physician-scientists who have attained a high level of expertise. The fact that [the 
petitioner] boasts membership in so many of these highly-esteemed organizations is 
evidence of his superior reputation as a physician-scientist. 
Dr. claimed that the petitioner "is one of the rare experts who can quickly and accurately 
evaluate a patient's symptoms and determine the precise medical problem or disorder that a patient is 
suffering from and determine any complications that may be associated with a particular course of 
treatment." Dr. claimed that the petitioner "is a prolific scientist and his published work has 
impacted the field nationally .... Publications and authorship are the optimum reflection of a high level 
of knowledge and widespread reputation in the medical community, as only to -tier physicians are able 
to perform large amounts of research and get their writings published." Dr. identified only 
one published work by the petitioner, specifically the aforementioned book chapter from 2001. Dr. 
did not corroborate or elaborate upon his claims regarding the nature of published research. 
(b)(6)
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Page 7 
The petitioner submitted documentation of his membership in several associations, but he did not show 
that any of those memberships have the significance claimed by various witnesses. He documented the 
membershi re uirements of only two named organizations. A membership certificate from the 
acknowledged the petitioner's membership in the 
organization, but did not specify a membership class. Article XVI, Section 1 of the Academy's bylaws 
identify "nine (9) classes of members, which shall be called general, founding, international, member­
in-training, fellows, medical students, honorary, affiliate and retired." Section 3 of the same article 
reads, in part: 
A. General Members are those psychiatrists who have completed acceptable training 
and who have either a valid license to practice medicine or hold an academic, 
research, or governmental position that does not require licensure and who work 
with alcoholism and addiction in their practices .... 
D. Fellows shall be those distinguished psychiatrists who have made a contribution of 
significant value to the field of alcoholism and addictions .... 
F. Honorary Members are those individuals who have dedicated their life's work to 
the field of alcoholism and addictions and whose contributions mandate 
membership. 
The only membership classes indicating special recognition are "fellow" and "honorary member," and 
the petitioner has submitted no evidence that he holds either class of membership. The lack of 
specificity on the petitioner's membership certificate suggests general membership, the only 
requirement for which is proper credentials to work in the field. 
Sections B-1.11 and B-1.12 of the Bylaws of the require only that a 
prospective member meets at least one of four criteria. One must either "Possess the degree of Doctor 
of Medicine or its equivalent," "Possess an unrestricted license to practice medicine and surgery," be a 
"medical student[] enrolled in [an accredited] college of medicine or osteopathy" or participate in an 
accredited training program. 
The membership requirements cited above, submitted by the petitioner, fail to support witnesses' 
claims that the petitioner's memberships in those organizations demonstrate elevated standing in the 
field. Therefore, witness assertions about the significance of the petitioner's memberships remain 
unsupported. As stated previously, unsupported claims cannot meet the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 165. 
The most recent letter, dated May 18, 2010, is from medical director of the Project for 
stated that 
the petitioner "is an intelligent and capable clinician making him a valuable asset at a place like 
' in "an area of that typically has relatively poor access to mental 
health services." 
(b)(6)
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Page 8 
On January 9, 2012, the director issued a request for evidence, instructing the petitioner to "establish 
that he has a past record of specific prior achievement with some degree of influence on the field as a 
whole." The director quoted several witness letters, but found that they lacked "in depth details on what 
impact the petitioner's work has made or will make in the future." 
The petitioner's response included further claims from prior counsel that lacked both detail and 
corroboration, such as the assertion that the petitioner "has developed a sustained reputation for his 
ability to deal with tremendou s efficiency and precision in emergency and complex situations where 
there is literally no margin for error and not a minute to waste." 
Prior counsel noted the approval of the 0-1 nonimmigrant petition mentioned earlier, and stated that 
this approval constituted USCIS's recognition of the petitioner's stature in his field. The director's 
decision does not indicate whether the director reviewed the prior approvals when adjudicating the 
present immigrant petition. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. USCIS need not approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have 
been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 
1988). Acknowledged errors are not binding precedent. See Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988) . 
The petitioner submitted copies of certificates and reports documenting his recent work. These 
materials did not distinguish the petitioner from others in his field. The petitioner also submitted further 
information about a stated shortage of psychiatrists in the petitioner's area of New York City. 
In order to claim a national interest waiver as a physician practicing in a medically underserved area, the 
petitioner must meet specific conditions set forth in section 203(b )(2)(B)(ii) of the Act and the US CIS 
regulations at 8 C.F.R. § 204.12. The petitioner did not meet those conditions in the proceeding now 
under discussion . On June 29, 2012, shortly after he filed the appeal in the current proceeding, the 
petitioner filed another Form 1-140 petition (with receipt number SRC 12 903 21113) on his own 
behalf. In the 2012 petition, the petitioner sought the same immigrant classification 
with the national 
interest waiver, but included the evidence required under the physician shortage provisions. The 
director approved the petition on April 3, 2013. 
The director denied the petition on May 29, 2012, stating that the petitioner failed to submit specific 
evidence to establish eligibility for the national interest waiver. On appeal, the petitioner signed a 
statement describing himself in the third person. The petitioner asserts that he merits the waiver 
through his "leading roles at prominent medical institutions along with his history of original and 
pioneering publications and significant contributions to the field of psychiatry." The record contains 
minimal evidence of the existence of his published work, and no evidence that it has been particularly 
important or influential. The director had stated that citation evidence is one way to establish the impact 
of published material, but the petitioner, on appeal, submits no evidence along those lines. The 
(b)(6)
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Page9 
petitioner repeats the assertion that has "had a significant national influence in improving healthcare," 
but neither explains nor substantiates that claim. 
Prior counsel likewise offers a generalized claim of eligibility rather than documentary evidence in 
support of specific claims. Prior counsel states: "it does not benefit the nation to require [the petitioner) 
to obtain labor certification because [the petitioner' s) role as a cardiologist [sic] goes beyond just 
providing basis patient care. The record reflects that [the petitioner] will continue to work both in 
performing research and in the field of psychiatry providing clinical care to patients." The record does 
not contain any evidence that the petitioner's work at 
since 2004 has involved research, as opposed to clinical patient care. The petitioner has claimed no 
published work after the 2001 textbook mentioned previously. 
The petitioner, on appeal, has not shown that the director erred in denying the petition. Furthermore, 
the subsequent approval of his 2012 petition, based on the physician shortage provisions of section 
203(b )(2)(B)(ii) of the Act, demonstrates that he has now received the benefit that he sought through 
the present proceeding. 
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 AAO 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.