dismissed EB-2 NIW Case: Public Health

(b)(6)
·' 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 
DATE: APR 0 2 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrativ~ Appeals Office in your case. All of the documents 
related to this matter have been returned to ~he 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 AAO inappropriately applied the law in reaching it~ decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
·directly with the AAO~ Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be flled within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based iin.migrant visa 
petition. The matter is now before the Administrative Appeals Office (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 professions holding an advanced degree. The 
petitioner is a candidate for a master in business administration degree at 
. ] Baltimore, Maryland. While at l the petitioner has also served as research program 
coordinator for a stUdy correlating HIV, drugs and heart disease. 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 woul4 be in the national interest of the United States. 
L 
On appeal, the petitioner submits _citation data and a brief from 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 ofJob Offer-:; 
(i) ... the Attorney G~eral 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, lOlst Cong., lst Sess., 11 (1989). 
(b)(6)
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fe~. Reg. 60897, 60900 (November 29, 1991), states: 
. The Service [now U.S. Citizenship and Immi~ation Services (USCIS)] beli~ves 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 aU en to establish that exemption from, or waiver of, the job offer will be in ihe . 
national interest. Each case is to be judged on its own merits. 
In reNew York State·Dept. of Transportation (NYSD01), 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 iii 
scope. Finally, the petitioner 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 pas~ 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, arid 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. 
The petitioner filed the Form 1-140 petition on May 8, 2012. In an accompanying letter, counsel 
offered a capsule discussion of NYSDOT and listed a number of unpublished AAO appellate 
decisions approving national interest waivers. Counsel did not provide any of the facts from the 
cited decisions except to identify the occupations of the respective beneficiaries. Counsel failed to 
explain how these unpublished decisions are relevant to the present proceeding. While the USCIS 
regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees m the administration of the Act, uripublished decisions are not similarly binding. The 
decisions show that workers in a wide range of fields can qualify for the waiver, but they do not 
establish blanket waivers for aliens in those fields. At issue is not what the petitioner does, but ·the 
·significance of what the petitioner has so far accomplished. 
(b)(6)
Page4 
The petitioner submitted copies of two articles he co-wrote. One article, from the June 2012 issue 
of the - showed the petitioner as the 1ih of 13 authors. The 
second article, submitted in manuscript form, was m~ked as haying been accepted for publi~ation 
in _ The petitioner was listed seventh out of 12 authors of that paper. 
This material establishes the petitioner's participation in medicai research, but it does not establlsh 
his impact or. influence on his field, or otherwise distinguish the petitioner's work from that of other 
researchers in that field. 
·On August 11, 2012, the petitioner submitted additional materials, 'which counsel called a 
"Response to Request for Evidence," although the director issued no request for evidence (RFE) 
before August 11, 2012. ·The petitioner's August 2012 submission included additional 
documentation of his professional credentials, cqpies of his two published articles and his master's 
thesis, and several witness letters. Counsel asserted that these letters show that the petitioner meets 
the guidelines. set forth in NYSDOT. Most of the. witnesses are researchers, or have 
demonstrated ties to that. institution. Counsel asserted that "som_e of the letters are from people 
outside [the petitioner's] circle of his acquaintances -·who do not know him personally." 
. -
country medical officer in for the 
stated: 
I have never worked with [the petitioner], and I have never supervised him in any 
capacity directlY: However, owing to his association with the and having 
worked in the I am confident to 
comment on his work, acumen and professional credentials for the successful 
management of health and public health projects targeted to improving the health of 
vulnerable populations . 
. . . I ... comprehend from my professional networks that [the petitioner] contributed 
towards India's success to implement the 
in the whole nation in the capacity of a consultant for the 
program in state .... 
Like [the petitioner], I was one of those consultants for (1999-2004). 
Having worked in the .highly challenging state of , he must certainly have 
endured and built his capacity to work in the most challenging environments. . 
. . _ 
This state, with a population of about 80 million, continues to do well after tlie initial 
consultancies of the consultants like [the petitioner] and I provided there. 
Regarding the petitioner's current work, stated that the petitioner "is working towards 
the success of several NIH (National Institute of Health) sponsored projects to address the issues of 
cardio-vascular-disease (CVD) and drug abuse in American population infected with HIV/AIDS." 
Rather than discuss this project any further, turned to a discussion of tuberculosis, 
without any explanation as to how it relates to the petitioner's current work. 
(b)(6)
· Page 5 
in the 
public h~alth director for the City of and chair of policy development 
, stated: 
[The petitioner] has been instrumental and supported the efforts of APHA to achieve 
the goal or" continuous advancement and continuous improvement of the health of 
residents -of the United States. By virtue of his multiple advanced degrees ... and 
rich experience of more than 10 years, he has an exclusive edge over others in his 
. field, ~d his contribution has been outstanding and significant. 
praised the_ petitioner's "past continuous contribution" but provided no details. The AAO 
notes that degrees and more than ten years of experience are both contributing factors toward a 
finding of exceptional ability. See 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (B). Exceptional abtlity is 
not, by itself, grounds for the waiver, and therefore evidence ·supporting, a partial claim of 
exceptional ability does not inherently show eligibility for the waiver . 
. The remaining witnesses all have· affiliations with of the 
, who teaches "several courses and seminars . 
. . on 
health 
management and patient safety," was the petitioner's mentor during his studies for his Master 
of Public Health degree. . stated that the petitioner "contributed significantly'' to 
nationwide implementation of the Regarding the petitioner's work at 
r====;=--stated: 
1-i:e conducted data analysis of quarterly project reports for six years and evaluated 
·the . . . His capstone thesis now has been a great source of 
reference for students interested in project evaluation, especially in infectious 
disease .... 
The two recent research artiCles which he co-authored are of vital importance and 
have the strong potential to improve the health of millions .of African-Americans. 
These articles revealed that the defici~ncy of vitamin D and coronary artery disease 
are prevalent in HIV -infected African· Americans. These. studies suggest the 
evaluation of Vitamin D, in addition to management of traditional coronary-artery­
disease (CAD), as potentially important interventions in this high risk patient 
population .... 
He is successfully managing several sponsored 
projects targeted to elucidating the effect of drug abuse in the development. of heart 
disease in the HIV infected American population. 
research associate at is the petitioner's supervisor. stated that the 
petitioner "has been able to make consistent and significant contributions to the success of our 
research 'efforts," but did not specify the nature of those contributions except to state that the 
petitioner '.'has been responsible for the overall running of several sponsored research programs 
and a sponsored research project," owing to "[h]is ability to coherently translate his 
ideas into a rigorous scientific protocol." 
(b)(6)
Page6 
praised the petitioner's "outstanding multifaceted professional 
contributions to the field of tuberculosis, HIV/AIDS and cardiac diseases involving inflammatory 
process[es] such as coronary heart disease," but provided few details. Instead, 
provided general descriptions and asserted that the petitioner has excelled in.his work. 
stated that the petitioner's "two recent publications ... may prove to be a breakthrough in 
developing new treatment modalities," wording indicates speculation about possible 
future outcomes, rather than known, existing results. 
director of Training and Capacity Building at the 
praised the petitioner's ability to "app~y extremely creative and 
innovative solutions to address complex organizational problems in the medical setting." 
program director at the & • supervised the 
petitioner's work on a project where the petitioner "worked on an important area of mining and 
compiling data on the health status of local residents of East Baltimore." :tSserted that 
the petitioner's success· in past projects deffionstrates his ability to make valuable contributions: 
"His· outstanding· track record proves that he can be expected to continue to serve US national 
interests to a significantly greater extent." 
assistant professor at the collaborated with the petitioner 
"on several research projects" during a two-year research fellowship at stated: 
''we conducted some cross-sectional researches, which helped me to better understand and elucidate 
many fact[s] on HIV and heart diseases .... The examined·patient pools were obtained from the 
large longitudinal cohorts of patients maintained by [the petitioner] in his parent research group." 
asserted that the petitioner's role !'not only [requires] sound knowledge of medicine 
and public health . · .. but also a leadership acumen and managerial astuteness." 
who taught a class that the petitioner attended at the 
stated: "I believe that [the petitioner] has the ability to become a successful leader 
within the medical community. He seems dedicated to healthcare and continues to look for 
opportunities to learn more and expand his knowledge." 
. vice president of research and planning at ~---------­
Baltimore, stated: 
I met [the petitioner] approximately two years ago when we started the Master in 
Business Administration ·(MBA) program in Health Bervices Management at the 
[The petitioner's] public health work with the World Health Organization provides 
unparalleled preparation in researching the ·spread of disease and its prevention .... 
Because of his public health experience with populations several times the size of the 
U.S., he has a broader understanding of disease vectors and its epidemiologic 
patterns .... His deep knowledge in TB, HIV/AIDS and experience in US health 
(b)(6)
J 
Page7 
care uniquely contributes to the understanding of the control and prevention of these 
infectious diseases individu~ly as well as in conjunction with each other .... 
Recent improvements in the . treatment and management of HIV I AIDS have · 
significantly extended the lives of these patients. Several recent reports suggest that 
Highly Active Antiretroviral Therapy (HARR T) is associated with a number of 
clinical and metabolic complications including cardio-vascular diseases (CVD) .... 
[The petitioner] has worked on these issues for many years and his work has helped 
to reveal the mysteries behind them. Two recent publications, which he has co­
authored, have uncovered the strong asso.ciation of . Vitamin D deficiency with 
coronary artery disease (CAD), especialiy in HIV/AIDS infected African American 
population. . . 
. These findings are of significant value and have the potential to 
deliver breakthroughs in the management of[several] preventabie diseases. 
On August 30,. 2012, the director issued an RFE, instructfng the petitioner to submit documentation 
to meet the gtiidelines set forth in NYSDOT. Counsel did not directly address the content of the 
RFE, stating instead that the director must have overlooked the August 11 submission. The bulk of 
the petitioner's response consisted of copies of materials in that submission, along with copies of 
various diplomas and training certificates (including the high school diploma of one 
submitted without explanation). · · 
The director denied the petition on November 20, 2012, stating that the petitioner submitted "no 
corroborative primary evidence" to show "the direct role the beneficiary has played in the field as a 
whole." The director noted the petitioner's participation in ongoing studies, but stated: "The 
suggestion that such methods might, possibly at some future date, be beneficial is not sufficient to 
establish eligibility for a national interest waiver." The director stated that the petitioner has not 
shown that his research work· has attracted significant attention, for example through heavy 
independent citation by other researchers. 
On appeal, the petitioner submits a printout from the Google Scholar database, showing a total of 
seven citations of three of his articles ( orie article cited once, another twice, and_ a third article cited 
four times). The printout does not identify the citing articles or their authors, and therefore the 
submission does not show how many of the seven citations are self-citations by the petitioner and/or 
his co-authors. 
On the Form I-290B, Notice of Appeal or Motion, counsel claims that the petitioner "submitted a 
detailed statement in support of the National Interest Waiver, in which he .articulated how he stands 
apart from his peers." In an accompanying brief, counsel states that, in addition to submitting 
_ witness letters, the petitioner "has argued and supported his case through other objective evidence~ 
See his Statement in' Support ofthe National Interest Waiver (Attachment 1), and 'Science in the 
National Interest,' which cails for maintaining U.S. leadership across the frontiers of scientific 
knowledge." A personal statement by the petitioner himself would not constitute "objective 
evidence." In any event, the record does not oontain any such statement by the petitioner, or a copy 
of Science in the National Interest. Counsel's previous exhibit lists did not mention either exhibit. 
(b)(6)
. . 
Page 8 
· Counsel does not claim that Science in the National Interest discusses the petitioner or his work 
specifically. Rather, counsel states that it "calls for maintaining U.S. leadership across the frontiers 
of scientific knowledge." Such a document, even if the petitioner had submitted it, would attest 
only to· the intrinsic merit. of scientific research, which is not in question in this proceeding. There 
exists no blanket waiver for researchers. Rather, as members of the professions holding advanced 
degrees, such researchers are, by default, subject to the job offer requirement set forth at section 
203(b)(2)(A) of the Act. 
Counsel contends that "the evidence establishes unequivocally that ... [the petitioner's] experience 
and abilities set him apart from other highly qualified biomedical researchers in the field." To 
support this assertion, counsel quotes from previously submitted witness letters; These quotations 
make up the bulk of the appellate brief. 
The Board of Immigration Appeals (BIA) haS' held that.testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimoriial and documentary evidence, where available." /d. If testimonial· evidence 
lacks specificity,_ detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B.,., 21 I&N Dec. 1136 (BIA 1998). · 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility· 
for the benefit sought. Id. Letters from experts are not presumptive· evidence of eligibility; USCIS 
·may, as above, evalu·ate the content of those letters as to whether they support the alien's eligibility. 
USCIS may even give less weight to an opinion that is not corroborated, m accord with other 
information or is in any way questionable. See id. at795; see also Matter of V-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). See also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft ofCalifornia, 14-I&N Dec. 190 (Reg'l Comm'r 1972)). 
The witness letters, as discussed above, contain some details about the petitioner's past work but leave 
questions a,bout the nature of the petitioner's future work, and of the work that he will perform once he 
finishes his graduate studies. That he is studying at a bll;Siness school for a master's degree in business 
administration implies that the petitioner intends on pursuing a career in administration rather than as a 
front-line researcher, and the Witnesses have said little about how the petitioner has contributed to the 
research projects at Instead, they have described the projects themselves, and how those projects 
address important issues. This information is important, butitdoes not establish that involvement with 
those projects, in whatever capacity, demonstrates eligibility for the waiver. Regarding the petitioner's 
earlier work with the in India, some witnesses have claimed the petitioner had a national role 
with the project, whereas others have indicated that.his role was local to the state of 
None of the witness letters showed that the petitioner has had a particularly substantial impact on 
his field as a whole (which is the standard articulated in NYSDO'I); they have indicated only that the 
(b)(6)
Page 9 
petitioner played an integral role in particular projects at 
future benefit. 
that' have the potential for 
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. § 1361. The petitioner has not sustaiped that burden. 
ORDER: The appeal is disniissed.