dismissed EB-2 NIW Case: Pulmonology And Critical Care

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-G-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 25,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician specializing in pulmonology and critical care, seeks classification as a 
member of the professions holding an advanced degree. See section 203(b )(2) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The Petitioner .also seeks a national interest 
waiver of the job offer requirement that is normally attached to this employment-based second 
preference immigrant classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director, Texas Ser~ice Center, denied the petition. He found that the Petitioner did not 
establish that a waiver of the job offer requirement is in the national interest. Specifically, the 
Director concluded that the Petitioner had not demonstrated the necessary influence in the field. 
The matter is now before us on appeal. The Petitioner argues that her original research 
"distinguish[ es] her from the vast majority of critical care specialist[ s] who do not conduct research 
but limit their work to the clinical setting." 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification normally 
requires that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
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.-
Matter of A -G-
(A) In General.- Yisas 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) National interest waiver. ... the Attorney General may, when the Attorney 
General deems it to be in the national interest, waive th~ 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.e] 
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 n9ted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and propqrtion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Matter of New York State Dep't ofTransp., 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an area of 
substantial intrinsic merit. Id at 217. Next, a petitioner must show that the proposed benefit will be 
national in scope. Id Finally, the petitioner seeking the waiver must establish that he or she will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id at 217-18. 
While the national interest waiver hinges on prospective national benefit, a petitioner's assurance that 
he or she will, in the future, serve the national interest cannot suffice to establish prospective national 
benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the national 
interest by establishing a history of achievement with some degree of influence on the field as a 
whole. !d. at 219, n. 6. 
1 Pursuant to section 1517 of the Homeland Security Act of2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135,2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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(b)(6)
Matter of A-G-
II. ANALYSIS 
At 
the time of filing, the Petitioner was a pulmonary critical care fellow, 2 and the record reflects that 
she has performed research focusing on pulmonary diseases and disorders. Upon review of the 
entire record, the evidence establishes that she is a member of the professions holding an advanced 
degree and that her work is in-an area of substantial intrinsic merit. Regarding the second prong of 
the NYSDOT analytical framework, the Director correctly found that the proposed benefits of 
providing patient care would not be national in scope. The Petitioner, however, also submitted 
sufficient documentation to demonstrate that the proposed benefits of her pulmonary research are 
national in scope. Therefore, the Director's finding on that issue is withdrawn. It remains, then, to 
determine whether the Petitioner's past record of achievement is sufficient to meet NYSDOT s third 
prong. 
Documentation supporting the Form I-140, Immigrant Petition for Alien Worker, included evidence 
. regarding the Petitioner's academic and professional credentials, reference letters, poster 
presentations, and publications. After reviewing the materials offered in response to his notice of 
intent to deny, the Director denied the -petition, finding that the record did not establish the 
Petitioner's impact on the field. For the reasons discussed below, the submitted evidence does not 
establish that her work has influenced the field as a whole as required under the third prong of the 
NYSDOT analysis. Without such a showing, employment in a beneficial occupation does not, by 
itself, qualify the Petitioner for the national interest waiver. 
Most of the s~bmitted reference letters praise the Petitioner's clinical skills and indicate that her 
original research has the potential to impact the field, but not that it already has. For example, 
a professor at and 
states that she "ha,s reached a level of uncommon 
~xpertise in her field." discusses a study of patients with pulmonary hypertension in 
which the Petitioner found "that reduced corrected diffusing capacity could have other diagnostic 
value," and indicates this finding 
has provided "the foundation for further studies to be done on this 
topic." 
Some of the letters include general statements that the Petitioner 's work has influenced the field. 
a professor at indicates that the Petitioner "has 
had a profoundly influential impact through her original contributions." 
a professor at states that he is "confident thousands of 
patients have benefitted from" her research on pulmonary hypertension and that her findings 
"undoubtedly changed the way many physicians approach similar cases throughout the country." 
According to an assistant professor at the 
he is "well-aware of her research and ha[s] utilized its applications frequently in my own 
2 We note that on appeal, the Petitioner expresses her concern that the Director incorrectly referred to her as a "plastic 
surgeon" on the third page of his decision . However, a review of the record indicates that this was a typographical error 
and that the Director understood the Petitioner 's correct occupation . 
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(b)(6)
Matter of A-G-
practice." an assistant professor at writes that 
he has "sent several patients for specialty services" as a result of the Petitioner's data. While we 
acknowledge that her research studies have value, not every physician who performs original 
research that adds to the general pool of knowledge in the field inherently serves the national interest 
to an extent that is sufficient to waive the job offer requirement. The Petitioner did not provide 
sufficient evidence to support statements that her research findings have been widely implemented in 
clinical practice or have otherwise had a degree of influence on the field as a whole. Unsupported 
statements are of limited probative value and are not sufficient for purposes of meeting the burd~n of 
proof in these proceedings. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The Director noted that multiple letters reference the 
The decision 
quotes a letter from from who wrote that the Petitioner 
"contributed to truly groundbreaking research in our profession that was published in the 
As stated by the Director, however, "the 
record contains a single page document," which was "identified as a 'poster discussion,' not as a 
published scholarly article," and that the "document lists the name of seven authors, and the 
petitioner is not one of these authors." The record also contains a printout of emails from one of the 
listed authors, but does not establish the Petitioner's contributions to the project. She did not address 
this issue on appeal. 
Regarding the Petitioner's remammg publications and presentations, they demonstrate that the 
Petitioner's research findings were share'd with others and may be acknowledged as original based 
on their selection to be presented or published. They do not, however, establish that those findings 
have had an impact on the field as a whole. The record does not contain evidence showing that her 
work has been widely cited or otherwise considered influential in her field. 
The Petitioner also contends that her background, skills, and experience make her especially well 
qualified for the position relative to other workers. 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 
through the labor certification process. See NYSDOT, 22 I&N Dec. at 221. 
III. CONCLUSION 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced 
degree professional or individual of exceptional ability should be exempt from the requirement of a 
job offer based on national interest. For the reasons discussed above, we find the record insufficient 
to confirm that the Petitioner's past record of achievement is at a level sufficient to waive the job 
offer requirement which, by law, attaches to the visa classification sought. Accordingly, the 
Petitioner has not established by a preponderance of the evidence that a waiver of the requirement of 
an approved labor certification will be in the national interest of the United States. 
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Matter of A-G-
For the above reasons, the Petitioner has not met its 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). 
ORDER: The appeal is dismissed. 
Cite as Matter of A-G-, ID# 11767 (AAO Oct. 25, 2016) 
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