dismissed EB-2 NIW Case: Public Health

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PUBLIC copy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. 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. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
U 
fi Perry Rhew 
Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a patient safety officer. The petitioner asserts that an exemption fiom 
the requirement of a job offer, and thus of an alien employment 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 had not established that an 
exemption fiom the requirement of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief. For the reasons discussed below, we uphold the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(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 ofjob 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 petitioner holds a Master's degree in Public Health fiom Harvard University. The petitioner's 
occupation falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies 
as a member of the professions holding an advanced degree. The remaining issue is whether the 
petitioner has established that a waiver of the job offer requirement, and thus an alien employment 
certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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 
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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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of ths 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 fkom, 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 Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. Finally, the petitioner seeking the waiver must establish that the alien will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. Id. at 2 17- 1 8. 
It must be noted that, whle the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, 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 achievements, and whose benefit to the national interest would 
thus be entirely speculative. Id. 
The director did not contest that the petitioner works in an area of intrinsic merit, public health for 
home care patients, and that the proposed benefits of her work, reducing the national rate of acute 
care hospitalizations among home care patients, would be national in scope. At issue is whether the 
petitioner will benefit the national interest to a greater extent than an available U.S. worker with the 
same minimum qualifications. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualify for a national interest waiver. 
that the petitioner participated in an intensive and exclusive eight-day training course at the Institute 
of Health Care Improvement (MI) to become a patient safety officer. further asserts that 
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only four of the 500 trained are employed in the home health care arena. It cannot, however, suffice 
to state that the alien possesses useful skills, or a "unique background." 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 United States is an issue under the jurisdiction of the 
Department of Labor. Id. at 22 1. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification she seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7. 
explains that through the petitioner's leadership, HHC has been able to dramatically 
increase the percentage of patients who improve their oral medication management, exceeding the rates 
elsewhere in the nation. further explains that the results of this improvement include fewer 
side effects, doctor visits and hospital admissions. ~inall~,xlains that the petitioner has 
been instrumental in providing the necessary information, counseling and feedback to patients to take 
their medication correctly and has the "opportunity to impact the nation at large by sharing best 
practices validated in her role." We have already acknowledged that the proposed benefits are national 
in scope. At issue is whether the petitioner has already demonstrated a track record of success with 
some degree of influence on the field as a whole. Id. at 21 9, n.6. 
The record includes a joint letter from and 
 performance 
improvement coordinators at the Island Peer Review Organization (PRO) in New York. They indicate 
that the petitioner became the lead facilitator for 
at Health and Home Care in November 2006, a role she took on "mid-stream." The presentation on 
accomplishments in the record reports on the Wave I highlights as of December 2006, only 
one month after the petitioner assumed a leading role as thefacilitator for Health and Home 
Care, and the Wave I1 highlights as of June 2007. According to the joint letter, the petitioner 
reevaluated the program's direction and effectiveness and improved the program within one year. In 
addition, they explain that the petitioner "participated in PRO sponsored educational teleconferences 
where best practices specific to home healthcare are shared." The joint letter does not suggest that 
these were national teleconferences. 
at Harvard University's Department of 
Health Policy and Management and one of the petitioner's professors, asserts that the petitioner led 
Health and Home Care to meet the five percent improvement target set by the Centers for Medicare and 
Medicaid Services (CMS) in February 2007, eleven months before the deadline. - 
explains the significance of this achievement in light of CMS' movement to a Day for performance era. 
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thelead facilitator since November 2006, just three months before Health and Home Care met 
~h- presentation referenced above indicates that the 
majority of the reported improvements. huther asserts 
that the petitioner initiated a key home health care initiative to improve the management of oral 
medications and notes a recent study concluding that 40 percent of nukin home admissions are due to 
an inability to safely manage medications at home. explains that under the 
petitioner's leadership, Health and Home Care "has come to be rated above national and regional 
averages" for accurate medication reconciliation." 
All of the above assertions relate to the petitioner's local impact. fixther asserts that 
the petitioner "has set trends that are being replicated by other Home Health agencies across the country 
as evidenced by the national educational teleconferences she has been asked to participate in." 
does not, however, identify one agency outside of New York that has replicated the 
petitioner's strategies with similar results or even committed to adopting the petitioner's strategies in 
the future. 
The petitioner also submitted a letter from at 
HHC, which she describes as the largest municipal hospital system in the nation. explains 
that during the MI course, the petitioner developed a patient safe action plan for Health and Home 
Care and developed a 12-month implementation plan. further asserts that the petitioner 
achieved identifiable results fiom the plan. In addition d explains that in the petitioner's role 
as a patient safety officer with Health and Home Care, "she is responsible for collaborating with the 
Island Peer Review Organization (IPRO)[,] the Medicare Quality Improvement Organization (QIO) for 
New York State, on key quality improvement initiatives to improve processes, outcomes and efficiency 
of care for the Medicare population." does not assert that this collaboration has had a 
national influence. 
then discusses the petitioner's leading role in implementing a number of clinical initiatives 
th and Home Care and the division's participation in a demonstration collaborative for 
While does not specifically assert is a national program, we 
acknowled e that a presentation in the record reflects that 175 agencies across 20 
states. next asserts that Health and Home Care also participates in the national CMS Home 
Health Quality I&provement (HHQI) campaign with the aim of redicing avoidable hospitalizations. 
reiterates that Health and Home Care achieved the target improvement rate for February 
2008 in February 2007 and "has since surpassed this target and has set a new goal for itself." 
asserts that the significance of these results is apparent from the IPRO request to share her best 
practices with other health care organizations but does not specifically assert that such sharing occurred 
at the national rather than regional level. While asserts that the petitioner's peers have 
adopted the petitioner's strategies in their own agencies in different parts of the country, she does not 
identify a specific agency that has done so. 
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While the letters from and indicate that Health and Home Care met the 
HHQI national campaign target in two months, by February 2007, the petitioner submitted a May 22, 
2008 letter from IPRO indicating the target had been met. Consistent with this date, the petitioner's 
presentation about Health and Home Care initiatives reflects that while improvements occurred in 
January and February, Health and Home Care took five months to achieve the HHQI target of 5 percent 
relative improvement. 
The etitioner submitted emails in the course of business. In a January 9, 2008 email, - dh from the Center for Home Care Policy and Research at the Visiting Nurse Service of New York (VNSNY), thanks the petitioner for a "t 
then invites the petitioner to serve as a 
template to share good practices at Health and Home Care. A subsequent email indicates that the 
petitioner accepted the rile of peer cham ion. The record contains no evidence as to the scope of the 
referenced outcomes call or whether P who works for a New York entity, would share the 
practices at Health and Home Care nationw~de. 
An email fiom of PRO praises the petitioner's success story. As discussed above, 
IPRO is a New York entity. The email does not reference any other agency locally or nationally that 
has copied or otherwise emulated Health and Home Care's strategies. 
An June 15, 2007 email from a quality improvement specialist with the Northeast 
Health Care Quality Foundation in New Hampshire, praises the petitioner's presentation at 
learning session and asserts that the participants "at both sites in New Hampshire (for VT/NH 
providers) and in Maine thought the presentation was well done, thought-provoking, validating of 
similar experiences, and encouraging with new ideas to march forward in the effort to reduce [acute 
care hospitalizations]." The email does not suggest that the petitioner's presentation had a national 
rather thk a regionai audience. A June 14, 200?email from co~firms that the presentation 
was only for agencies in Maine, New Hampshire and Vermont. Moreover, whlle the presentation was 
in 2007, the record contains no evidence fi-om participants in Vermont, New Hampshire or Maine 
confirming that they have actually implemented any of the petitioner's strategies. 
The petitioner submitted a certificate fiom the Home Health Quality Improvement (HHQI) National 
Campaign and IPRO recognizing Health and Home Care's participation in the campaign and the 
achievement of the campaign's goal of a 5 percent relative improvement and reduction of avoidable 
acute care hospitalizations (ACH). The record also includes a first prize HHC issued to Health and 
Home Care for improving the management of oral medications in home care patients but this 
recognition is purely local. The certificate is signed by a representative of ]PRO but not the HHQI 
national campaign. On September 11, 2008, Health and Home Care issued a certificate of recognition 
to the petitioner but only references her contributions to the agency's patients. 
The petitioner's presentation about Health and Home Care, page 4, reveals that Phase 1 involved using 
website resources to create an agency risk assessment and introducing theconcept to 
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clinical staff. Phase 3, which included joining the HHQI national campaign in January 2007, also 
included creating patient Emergency Care Plans based on a template from QI'S best 
practice websites. As such, it appears the petitioner was, at least in part, merely implementing- 
strategies designed by someone else. 
While the petitioner has presided over improvements at Health and Home Care as part of a national 
initiative, the record is absent any evidence of her past influence in the field as a whole. Her personal 
presentations appear to be limited to the Northeast region and the record does not contain a single letter 
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from an agency outside of New York confirming that they have implemented or are in the process of 
implementing any of the petitioner's original ideas that are independent of the concepts 
implemented at Health and Home Care but developed by= 
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 fi-om 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 alien employment 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. § 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.