dismissed EB-2 NIW Case: Surgery

(b)(6)
DATE: 
JUl 2 4 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT#: 
U.S. Depa1·tment of Homeland Scc.urit:v 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Ol'fice 
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 is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form •-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~~~ v ' 
~on osenberg 
n:bief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. We 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 seeks employment as a "general surgery physician scientist." At the time of filing, the 
petitioner was working as Chief Surgical House Staff of General Surgery Service (or Chief Surgical 
Resident), at The petitioner currently works as a Breast 
Oncology Fellow and surgeon at the at 
in California. 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. 
On appeal, the petitioner asserts that she "has made significant contributions to the field, that her work 
has impacted the national interest, ... and that she has distinguished herself from her peers, thereby 
justifying the waiver of labor certification." Although the petitioner indicated in Part 3 of the Notice of 
Appeal or Motion (Form I-290B) that a "brief and/or additional evidence will be submitted to the AAO 
within 30 calendar days of filing the appeal," as of this date, we have received nothing further. 
I. LAW 
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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
The record reflects 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." In reNew York State Dept 
of Transportation, 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 establish that she 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 she 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. 
The petitioner has established that her work as a surgeon and physician scientist is in an area of 
substantial intrinsic merit and that the proposed benefits of her research concerning general surgery 
and breast surgery would be national in scope. It remains, then, to determine whether the petitioner 
will benefit the national interest to a greater extent than an available U.S. worker with the same 
minimum qualifications. 
Although the national interest waiver hinges on prospective national benefit, the pet1t10ner must 
establish her past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's subjective assurance that she 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 petitioner, rather than to facilitate the entry of an individual with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
Furthermore, eligibility for the waiver must rest with the petitioner's own qualifications rather than 
\Vith the position sought. Assertions regarding the overall importance of a petitioner's area of 
expertise cannot suffice to establish eligibility for a national interest waiver. !d. at 220. At issue is 
\vhether this petitioner's contributions in the field are of such significance that she merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification she 
seeks. A petitioner must demonstrate a past history of achievement with some degree of influence 
on the field as a whole. !d. at 219, n. 6. In evaluating the petitioner's achievements, 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. !d. at 221, n. 7. 
II. ANALYSIS 
The petitioner filed the Immigrant Petition for Alien Worker (Form I-140) on January 3, 2014. The 
director determined that the petitioner's impact and influence on her field did not satisfy the third prong 
of the NYSDOT national interest analysis. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
In addition to documentation of her presented work, two manuscripts that the petitioner submitted 
for publication, and her medical training credentials, the petitioner submitted various reference 
letters discussing her work in the field. 
Dr. Program Director, General Surgery, states: 
[The petitioner] performs laparoscopic pancreatic surgery which is considered to be one of 
the most difficult areas to master in the field of general surgery .... There are only a handful 
of institutions in the world where laparoscopic pancreatic surgery is performed and only the 
best surgeons that can perform such high risk surgeries. 
Dr. mentions the petitioner's ability to perform laparoscopic pancreatic surgery, but any 
objective qualifications which are necessary for the performance of the occupation can be articulated in 
an application for labor certification. NYSDOT, 22 I&N Dec. at 220-21. In addition, there is no 
documentary evidence showing the impact of the petitioner's Vv'ork as a laparoscopic pancreatic 
surgeon extends beyond her own patients and, therefore, that her influence as a surgeon is national in 
scope. 
Dr. further states: 
Additionally, [the petitioner] is involved in faculty and residents evaluations as well as 
teaching and academics at the . She teaches the junior house staff, medical students, 
and physician assistant students both the theoretical and practical aspects of surgical practice. 
She is also involved in the monthly discussion of recent clinically relevant articles in both 
general and vascular surgery. 
Dr. discusses the petitioner's job responsibilities as chief surgical resident at but does 
not explain how the petitioner's \Vork has had an impact beyond the patients and staff at the hospital. 
There is no evidence showing that her work as an evaluator, teacher, or clinical discussion 
participant has affected the field as a whole. 
Dr. continues: 
[The petitioner] has also given various national level presentations such as her poster 
presentation on intraoperative US [ultrasound] for tumor margin assessment as a guide for 
optimal breast conservation surgery at _ Meeting; 
poster presentation in and presentation in 
on the research project faculty supervised morning report. 
Dr. mentions the petitioner's medical research presentations, but there is no evidence 
showing that once disseminated, the petitioner's work has garnered a significant number of citations 
or that her findings have otherwise influenced the i1eld as a whole. With regard to the petitioner's 
presentations at various meetings and surgical conferences, many professional fields regularly hold 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
meetings and conferences to present new work, discuss new findings, and to network with other 
professionals. Professional assoc1at10ns, educational institutions, healthcare organizations, 
employers, and government agencies promote and sponsor these meetings and conference s. 
Although presentation of the petitioner's work demonstrates that she shared her original findings 
with others, there is no documentary evidence showing, for instance , frequent independent citation 
of her work, or that her findings have otherwise affected the surgical field at a level sufficient to waive 
the job offer requirement. 
In addition, Dr. states that the petitioner has "won the first prize for her oral presentation at 
resident research day." This institutional award concerns the petitioner's residency at 
and does not establish or imply a wider impact or influence in the surgical field. For 
example, there is no documentary evidence showing that surgical practices in the field have changed 
in response to the petitioner's presented findings. We note that recognition for one's achievem ents 
can provide partial support for a claim of exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii)(F) , but 
exceptional ability does not establish eligibility for the waiver, as aliens of exceptional ability remain 
subject to the job offer requirement at section 203(b)(2)(A) of the Act. Similarly, recognition of 
one's achievements as an advanced degree professional does not, without evidence of influenc e o n 
the field as a whole, establish eligibility for the waiver. 
Lastly, Dr. asserts that the petitioner's "exceptional surgical practice and commitment to 
surgical education are contributing to the advancement of bariatric and laparoscopic surgery in this 
country," but he does not provide specific examples of how the petitione r's work has intluenced the 
field. 
Dr. Vascular Surgery Assistant Professor at the 
asserts that the petitioner "has utilized her unique clinical background in 
laparoscopic surgery to conduct cutting-edge studies that have led to groundbreaking advances and 
improvements in the field," but does not identify the advances or explain how they have resulted 
improved patient outcomes. 
Dr. furth er states: 
[The petitioner 's] ongoing research includes research on the prognostic factors in trauma 
patients older than 65 with rib fracture. The goal of this study is to identify the prognostic 
factors and treatment strategies with superior outcomes in rib fracture and trauma patients 
over 65 years .... Another of [the petitioner's] ongoing research focuses on the impact of 
preoperative breast MRI [Magnetic Reson ance Imaging] on managem ent of breast cancer in 
premenopausal patients. The purpose of this study is to determine the impact on treatm ent 
that preoperative breast MRI has in premenop ausal women diagnosed with in situ (DCIS) or 
invasive breast cancer (IDC or ILC). [The petitioner's J goal is to determjne the impact of 
breast MRI findings on additional breast imaging , biopsy and/or surgical management and 
the added expenses to healthcare costs. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Dr. comments on the petitioner's research concerning the prognostic factors in elderly 
trauma patients with rib fracture and the impact of preoperative breast MRI on management of breast 
cancer in premenopausal patients, but there is no documentary evidence showing that the petitioner's 
work has been frequently cited by independent researchers or has otherwise impacted the field as a 
whole. Although the petitioner's medical research may have value, any research must be original 
and likely to present some benefit if it is to receive funding and attention from the medical or 
scientific community. In order for a university, publisher or grantor to accept any research for 
graduation, publication or funding, the research must offer new and useful information to the pool of 
knowledge. Not every surgical resident or fellow 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. 
Dr. continues: "There is currently a critical shortage of general surgeons in our country. 
This highlights the urgent need for skilled surgeons like [the petitioner] \Vith valuable expertise in 
advanced minimally invasive procedures." Similarly, Dr. Colon and Rectal 
Surgeon, asserts that "[t]here is an expected general surgery workforce shortfall in the future~' and 
that "keeping talented surgeons like [the petitioner] benefits this country." The U.S. Department of 
Labor addresses assertions of worker shortages through the labor certification process, and ther-efore 
an asserted shortage alone is not sufficient to demonstrate eligibility for the national interest waiver. 
See NYSDOT, 22 I&N Dec. at 218. In addition, the exception for physicians at section 
203(b )(2)(B)(ii) of the Act has specific provisions for those practicing in shortage areas or at 
Veterans Affairs facilities, outlined at8 C.F.R. § 204.12; however, a physician does not qualify for 
the waiver just by asserting that there is a lack of physicians in her specialty .1 
Dr. Chief, Section of Acute, Trauma, and Critical Care, Department of Surgery, 
states: 
[The petitioner] is an expert in various laparoscopic procedures, a modern surgical technique 
in which operations are performed through small incisions. . . . [The petitioner] also has 
extensive expertise in surgical oncology procedures including the treatment of lung cancer; 
breast cancer; pancreatic cancer: colon cancer; and gastric cancer. [The petitioner] has 
performed countless vascular operations and life saving emergency surgical procedures. 
Those procedures include, but are not limited to: central venous line placement, pulmonary 
artery catheter placemen, chest tube insertion, tracheostomy, and operations for trauma. 
Dr. mentions the petitioner's expertise in various surgical procedures, but does not provide 
specific examples of how the petitioner's work has influenced the field as a \vhole. Special or unusual 
1 
Section 203(b )(2)(B)(ii) of the Act describes an alternative waiver for certain physicians who agree to work 
in an area designated by the Secretary of Health and Human Services as having a shortage of health care 
professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.' The 
waiver is limited to certain physicians who follow specific requirements set forth in the regulation at 8 C.F.R. 
§ 204.12. The petitioner has not addressed or attempted to meet any of these regulatory requirements. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
knowledge or training, while perhaps attractive to the prospective U.S. employer, does not inherently 
meet the national interest threshold. NYSDOT, 22 I&N Dec. at 221. There is no documentary 
evidence demonstrating that the petitioner has developed surgical methods that have been 
implemented at a significant number of medical centers or hospitals, or that her work has otberv.rise 
affected practices in the surgical field. 
Dr. Senior Research Scientist, Department of Radiation Oncology, 
New York, asserts that the petitioner's knowledge and expertise place 
"her in the top 5% of surgeons in the field" and that the petitioner has "contributed greatly to the 
laparoscopic surgery field," but does not offer examples of how the petitioner's work has aJ:fected 
techniques the surgical field. 
In addition, Dr. describes the petitioner's ongoing research at concerning 
prognostic factors in trauma patients older than 65 with rib fractures and the impact of preoperative 
breast MRI on management of breast cancer in premenopausal patients. While Dr. 
identifies the goals and objectives of the aforementioned studies, there is no documentary evidence 
showing that the petitioner's research work has already attained those outcomes and that the results 
have influenced the field as a whole. 
Dr. continues: 
[The petitioner] is also working on a unique research project which focuses on use of 
intraoperative ultrasound to assess tumor margin in breast conservative surgery. This study 
will help in improving cosmetic appearance of breast after surgery by avoiding re-excisions 
and has a financial impact of saving cost of additional surgery. This study was selected for 
poster presentation in the annual meeting on m 
2012. 
Dr. mentions the petitioner's research project concerning the use of intraoperative 
ultrasound to assess tumor margin in breast conservative surgery and notes that her work was 
presented at the annual meeting in 2012. The petitioner, however, has not submitted any 
documentary evidence showing that her work has been frequently cited by independent researchers, 
has affected treatment protocols at various medical centers 
with corresponding improvement in 
patient outcomes, or has otherwise influenced the field as a whole. 
In response to the director's request for evidence, the petitioner submitted letters of support from Dr. 
Chief of Vascular Surgery at and Dr. 
Assistant Professor of Surgery at • The 
second and third paragraphs in Dr. letter and the third and fourth paragraphs in Dr. 
letter are identical in content to the second and third paragraphs in Dr. letter. The 
identical paragraphs in the letters suggest that their language was not written independently. While 
it is acknowledged that Dr. . Dr. , and Dr. have provided their support to this 
petition, it is unclear whether the letters reflect their independent observations and thus an informed 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
and unbiased opm10n of the petitioner's work. In evaluating the evidence, the truth is to be 
determined not by the quantity of evidence alone but by its quality. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). In addition, U.S. Citizenship and Immigration Services (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. !d. Based on the identical paragraphs in Dr. Dr. and Dr. letters, 
USCIS may accord them less weight. Regardless, their letters do not provide specific examples of 
how the petitioner's vmrk has affected the field as a whole. 
Dr. Chief of General Surgery at and Acting Director of the Breast 
Oncology Fellowship at the states: "[The petitioner] is unique in the field of surgery as she is 
a Breast Oncology Surgeon who also practices general surgery." In addition, Dr. states that 
the petitioner "is unique in that she also practices minimally invasive techniques" and that the 
petitioner has "become a master of complicated laparoscopic surgical procedures along with 
complicated breast oncology procedures." Any assertion that the petitioner possesses useful skills, 
or a "unique background" relates to \Vhether similarly-trained workers are available in the United 
States and is an issue under the jurisdiction of the U.S. Department of Labor through the labor 
certification process. NYSDOT, 22 I&N Dec. at 221. 
Dr. continues: 
[The petitioner] is also a physician-scientist who can combine her clinical expertise with top­
notch, rigorous academic research. [The petitioner] is currently involved with me in several 
research projects including clinical trials on the role of acupuncture in the treatment of joint 
pain induced by estrogen deprivation from aromatase inhibitor therapy and the role of 
cryoablation as an alternative approach to first line therapy for breast cancer and its impact 
on immune parameters. 
Dr. mentions that the petitioner's research projects concerning the role of acupuncture in 
the treatment of joint pain and the role of cryoablation as an alternative approach to first line therapy 
for breast cancer, but does not provide specific examples of how the petitioner's findings have been 
implemented by others in the field or have otherwise influenced the field as a whole. 
Dr. Director of the and 
and the Department of Translational Immunology, states that the pet1t10ner is 
working on three projects: "Effect of acupuncture on treatment-induced joint paint in patient with 
breast cancer," "Cryotherapy for treatment of early-stage breast cancer and the impact on the host 
tumor immunity," and "Development of a predictive system for breast cancer based on an immune 
score." Dr. however, does not explain how the petitioner's work on any of the projects has 
influenced the field. There is no documentary evidence showing that the petitioner's work has been 
frequently cited by independent researchers or has otherwise affected the field as a whole. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
The director denied the petition on November 14, 2014. The director acknO\vledged the petitioner's 
submission of reference letters, her professional credentials and memberships, and her presented 
work, but determined that they failed to show the petitioner's influence on the field was suHicient to 
demonstrate her eligibility for the national interest waiver. 
On appeal, the petitioner mentions the "numerous testimonies" submitted in support of the petition. 
The testimonial letters discussing the petitioner's clinical abilities as surgeon and research projects 
have already been addressed above. Again, the submitted evidence does not show that the results 
from the petitioner's research have been applied outside of the medical institutions w·here she trained 
or that her surgical abilities have otherwise affected the field as a whole as to warrant a waiver of the 
job offer. Furthermore, the petitioner has not submitted any new evidence on appeal. 
The petitioner submitted letters of varying probative value. We have addressed the specific assertions 
above. Generalized conclusory assertions that do not identify specific contributions or their impact in 
the field have little probative value. See 1756, Inc. v. US. Att ~v Gen. 745 F. Supp. 9, 15 (D.D.C. 
1990) (holding that an agency need not credit conclusory assertions in immigration benefits 
adjudications). In addition, uncorroborated assertions are insufficient. See Visinscaia v. Beers, 4 
F.Supp.3d 126, 134-35 (D.D.C. 2013) (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field); Matter o_fCaron lnt'l 1 Inc., 19 l&N Dec. at 
795 (holding that an agency "may, in its discretion, use as advisory opinions statements ... 
submitted in evidence as expert testimony," but is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought and "is not required to accept or 
may give less weight" to evidence that is "in any way questionable"). The submission of reference 
letters supporting the petition is not presumptive evidence of eligibility; users may evaluate the 
content of those letters as to whether they support the beneficiary's eligibility. Jd. See also Matter 
of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to 
be evidence as to "fact"). As the submitted reference letters did not provide examples indicating that 
the petitioner's work has influenced the field as a whole, they do not demonstrate her eligibility for 
the national interest waiver. 
In addition, the petitioner states: 
[The petitioner's] original \Vork has been published m 
the 
official publication of the 
Her research has also been submitted for publication in 
and 
The petitioner submitted an abstract for her poster presentation at the Annual Meeting 
that was printed from the " ' section of the society's website, but there is no 
documentary evidence of the abstract's publication or her publication. 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 (Assoc. Comm 'r 1998) 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
(citing Matter a,{ Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm ' r 1972)). Regardless, 
there is no evidence showing that her work has been frequently cited or has otherwise influenced the 
field as a whole. With regard to the petitioner's papers that were submitted for publication in 
and work published after the date of filing 
does not constitute evidence that the petitioner's findings were already influential as of that date. 
Eligibility must be established at the time of filing. 8 C.P.R. § 103.2(b )(1 ), (12); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Accordingly, we cannot consider the petitioner's work 
that was not yet published as of the filing date and, thus, had not been disseminated in the field, to 
establish her eligibility at the time of filing. 
III. CONCLUSION 
Considering the letters and other evidence in the aggregate, the record does not establish that the 
petitioner's work has influenced the field as a whole or that she will othervvise serve the national 
interest to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. 
A plain reading of the statute indicates that it was not the intent of Congress that every advanced degree 
professional or alien of exceptional ability should be exempt from the requirement of a job offer based 
on national interest. The petitioner has not shown that her past record of achievement is at a level 
sufficient to waive the job offer requirement which, by Jaw, normally attaches to the visa 
classification sought by the petitioner. Although the petitioner need not demonstrate notoriety on the 
scale of national acclaim, the petitioner must have "a past history of demonstrable achievement with 
some degree of influence on the field as a whole." NYSDOT, 22 I&N Dec. at 219, n.6. 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. 
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 l&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.