dismissed EB-2 NIW Case: Surgery

(b)(6)
DATE : JAN 1 6 ~014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Admini strative Appeals 
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 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-290:S) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
htttJ://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, 
)10W11c~ 
( 'Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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. The appeal will be 
dismissed. 
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. According to 
Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the petitioner seeks employment as a 
general surgeon. At the time of filing, the petitioner was working as a surgery resident at : 
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 submits an April 8, 2013 letter from counsel contesting the director's decision, 
citation information from and copies of two non-precedent AAO decisions. 
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. 
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." The Committee on .the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
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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 hnmigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 
Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service 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, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that he 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. Id. Finally, the petitioner seeking the waiver must establish that he 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, the petitioner must establish 
his past record justifies projections of future benefit to the national interest. Id. at 219. The petitioner's 
subjective assurance that he 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. ld. 
The petitioner has established that his work as a surgeon is in an area of intrinsic merit and that the 
proposed benefits of his minimally invasive surgery research 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. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with 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. NYSDOT at 220. At issue is 
whether this petitioner's contributions in the field are of such significance that he merits the special 
benefit of a national interest waiver, a benefit separate and distinct from the visa classification he 
seeks. 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, 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. 
(b)(6)
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Page4 
The petitioner filed the Form I-140 petition on September 26, 2012. In support of his petition, the 
petitioner submitted academic records, letters commenting on his experience as a surgeon, and 
professional memberships. Academic records, occupational experience, and professional 
memberships are elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), and (E). Exceptional ability, in tum, is not self-evident grounds for the 
waiver. See section 203(b )(2)(A) of the Act. 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 individual seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that individual 
cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his field of expertise. 
Counsel argues that the director's "denial was based on an overly restrictive standard that rises to the 
level of extraordinary ability" under section 203(b)(l)(A) of the Act. The director, however, did not 
require the petitioner to submit evidence commensurate with that required by the regulation at 8 C.F.R. 
§ 204.5(h)(3). Instead, the director determined that the petitioner had failed to demonstrate that "his 
work has influenced the field as a whole." In addition, the director noted a lack of evidence showing 
that the petitioner's work has been frequently cited by other researchers. While the petitioner need 
not demonstrate notoriety on the scale of national acclaim, the national interest waiver contemplates 
that his influence be national in scope. NYSDOT at 217, n.3. More specifically, the petitioner "must 
clearly present a significant benefit to the field of endeavor." !d. at 218. See also id. at 219, n.6 (the 
alien must have "a past history of demonstrable achievement with some degree of influence on the 
field as a whole"). The director's analysis accurately addresses the third prong of the NYSDOT test 
and is consistent with the precedent decision's guidelines. 
Frequent citation by others is not the only means by which to show the petitioner's impact on his 
field. Independent reference letters can play a significant role in this respect. Here, however, the 
petitioner has submitted only a few such letters, which collectively fail to establish the depth or 
extent of his influence on the field as whole. Listing the petitioner's novel findings and speculating 
on their potential future impact cannot suffice in this regard, because all researchers are expected to 
produce original work. Not every surgery researcher who performs original investigations or studies 
that add to the general pool of knowledge inherently serves the national interest to an extent that 
justifies a waiver of the job offer requirement. 
Along with copies of his published and presented work, the petitioner submitted letters of support 
discussing his activities in the field. As some of the letters contain similar claims addressed in other 
letters, not every letter will be quoted. Instead, only selected examples will be discussed to illustrate 
the nature of the references' claims. 
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~ . - , stated: "[The 
petitioner] is a resident in good standing in the general surgery program here at: 
___ New York. He began his training on July 1, 2009. He is expected complete 
her [sic] general surgery training on June 30, 2013." indicates that the petitioner is in the 
"training" phase of his surgical career, but does not provide specific examples of how the 
petitioner's work has influenced the field as a whole. 
I have worked closely with [the petitioner] . .. for 4 years during his training. 
* * * 
As a distinguished surgeon, [the petitioner] is an expert in diagnosing and managing acute 
surgical emergencies, as well as treating severely compromised patients. He possesses 
superior medical knowledge and mastery of complex procedures from multiple disciplines, 
including general surgery, minima,lly invasive surgery, trauma surgery, vascular surgery, 
colorectal surgery, thoracic surgery, pediatric surgery and critical care. 
[The petitioner's] surgical skills are exceptional. He is an authority in the most complex and 
high-risk surgical cases and, as a result, many surgeons regularly call upon him at the time of 
critical operations to manage such cases. 
* * * 
[The petitioner] is interested and expert in Minimally Invasive Surgery. . . . [The petitioner] 
has also performed an excellent research in this field. His work has been presented in many 
national and international conferences such as 
comments on the petitioner's expertise in handling surgical emergencies, ability to treat 
severely compromised patients, medical knowledge, mastery of complex procedures, and surgical 
skills. However, it cannot suffice to state that the petitioner 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. NYSDOT at 221. In addition, Dr. 
states that the petitioner's "work has been presented in many national and international 
conferences such as Many professional 
fields regularly hold meetings and conferences to present new work, discuss new findings, and to 
network with other professionals. These meetings and conferences are promoted and sponsored by 
professional associations, health organizations, businesses, educational institutions, and government 
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Page 6 
agencies. While presentation of the petitioner's work demonstrates that his findings were shared 
with others and may be acknowledged as original based on their selection to be presented, there is no 
documentary evidence showing that his presented work has specifically impacted minimally 
invasive surgical techniques performed by others throughout the field, that his work is frequently 
cited by independent researchers, or that his findings have otherwise influenced the field as a whole. 
stated: "[The petitioner] is a leading researcher in Minimally Invasive Surgery. His paper titled 
The preceding paper coauthored by the petitioner was not published in _ _ 
until after the petition's September 26, 2012 filing date. Research 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)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come 
into being only subsequent to the filing of a petition." !d. at 176. In this matter, that means that the 
petitioner must demonstrate his track record of success with some degree of influence on the field as 
a whole as of that date. Consistent with the preceding precedent decisions, a petitioner cannot secure 
a priority date in the hope that his unpublished research at the time of filing will subsequently prove 
influential. Ultimately, in order to be meritorious in fact, a petition must meet the statutory and 
regulatory requirements for approval as of thedate it was filed. Ogundipe v. Mukasey, 541 F.3d 257, 
261 (41h Cir. 2008). Accordingly, the petitioner's research paper that was not yet published as of the 
date of filing and, thus, had not been widely disseminated in the field as of that date, cannot establish 
his eligibility for the waiver as of the date of filing. 
further stated: 
According to current reports, our nation suffers from a shortage of qualified health care 
professionals, and in particular Surgeons like [the petitioner]. America is sitting on the cusp 
of a major shortage of general surgeons that will only worsen as baby boomers grow older, 
hitting a stage of life when they will need surgery most. ... Each year, thousands of medical 
students graduate, but very few specialize in General Surgery and Minimally Invasive 
Surgery due to declining medical student interest in certain surgical specialties with a 
perceived poor lifestyle, most notably general surgery. 
asserts above that there is a "shortage" of qualified general surgeons in the United 
States. The unavailability of qualified U.S. workers or the amelioration of local labor shortages are 
not considerations in national interest waiver determinations because the · alien employment 
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certification process is already in place to address such shortages. NYSDOT at 218. The issue of 
whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor through the alien employment certification process. !d. at 221. 
[The petitioner's] recent article titled ' 
accepted for publication in the . 
This article is a significant contribution to the literature at many levels. Single Incision 
Surgery is uncommon in pediatric patients. It leads to less number of scars on the abdomen 
compared to the conventional laparoscopy and diminishes the postoperative pain. [The 
petitioner] has addressed the need and feasibility of teaching this emerging technique to all 
surgical residents so that it can be incorporated and used by all surgeons throughout the 
United States. He has also published other equally important a ers in different fields of 
Surgery, such as ' 
comments on the petitioner's article in 
, but as previously discussed, the article was published subsequent to the petition's filing 
date. Eligibility must be established at the time of filing. 8 C.P.R. § 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. Regardless, while the article discusses the authors' ' 
·· · · ·· in 
surgical residency program, there is no evidence indicating that the 
petitioner and his coauthor were the first surgeons who originated or pioneered the 
appendectomy technique. The petitioner has not established that teaching a surgical technique 
developed by others demonstrates a level of achievement sufficient to waive the job offer 
requirement. In addition, there is no documentary evidence showing that the petitioner's two articles 
m are frequently cited 
by independent researchers, that his findings have led to widespread changes in teaching protocols 
with corresponding improvement in surgical outcomes, or that his findings have otherwise 
influenced the field as a whole. 
[The petitioner] is at forefront of research. He has performed a leading and critical role in 
many research projects such as single incision surgery, surgery for morbid obesity and breast 
surgery. Single incision surgery is a newer technique in Minimally Invasive Surgery .... 
[The petitioner] is one of the very few surgeons in the United States who can perform the 
single incision surgery. As a surgeon scientist [the petitioner] is always willing to innovate, 
evaluate and teach the newer techniques such as single incision surgery. [The petitioner's] 
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Page 8 
work in this area has been appreciated and presented at many national and international 
meetings such as 
comments on the petitioner's surgical research experience and ability to perform 
single incision surgery, but any objective qualifications which are necessary for the performance of the 
occupation can be articulated in an application for alien employment certification. NYSDOT at 220- · 
221. In addition, while asserts that the petitioner's work was "appreciated" at 
meetings of the _ there is no documentary evidence showing that his 
research presentations have been frequently cited by independent researchers or that his fmdings have 
otherwise influenced the field as a whole. 
stated: 
[l]t is clear that [the petitioner's] work is providing tremendous benefits to the United States 
and will continue to do so in the future. For example, [the petitioner's] publication titled 
~ -
has been recently accepted for publication. . . . In this 
study [the petitioner] has shown that not only is this new technique safe in pediatric patients, 
but it also can be safely taught to surgery residents so that they can use it for the benefits of 
the patients all over the U.S. In particular, thisimpressive work has significant value to our 
nation because it has the potential to revolutionize the treatment in laparoscopic surgery. 
I very much look forward to the results from [the petitioner's] current research and the 
innovative projects he will undertake in the future. I have no doubt that [the petitioner] 
provides incredible value to the United States and our healthcare system. I am confident that 
he is a physician-scientist of extraordinary ability, as his contributions to the field of general 
surgery and Minimally Invasive laparoscopic surgery are truly exceptional. 
asserts that the petitioner's work "has the potential to revolutionize the treatment in 
laparoscopic surgery," but the record does not show that the petitioner's work has yet had that effect 
on a national level. Speculation 
about the possible future impact of the petitioner's work is not 
evidence, and cannot establish eligibility for the third prong of the national interest waiver test. In 
addition, while states that he "look[s] forward to the results from [the petitioner's] 
current research and the innovative projects he will undertake in the future," fails to 
provide specific examples of how the petitioner's past work has already influenced the field of 
surgery as a whole. A petitioner cannot establish eligibility based on the expectation of future 
eligibility. Matter ofKatigbak, 14 I&N Dec. at 49. 
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Page 9 
I met [the petitioner] at : four years ago and have been impressed 
by his work as a researcher since then. . . . I have been following [the petitioner's] 
presentations at various nationally and internationally recognized conferences such as 
_ [The petitioner's] presentations 
at these various conferences have inspired me in my work as a Minimally Invasive and 
Bariatric Surgeon. For example [the petitioner] is one of the few surgeons in the United 
States who perform the single incision surgery, which is a form of Minimally Invasive 
Surgery. Through his research [the petitioner] has shown that this newer technique not only 
enables surgeons to reduce the number of incisions and decrease the postoperative morbidity 
but also that it is safe for patients. His pioneering work in this field has inspired me to 
incorporate this technique in my practice for the benefit of my patients. 
asserts above that the petitioner "is one of the few surgeons in the United States who 
perform the single incision surgery." As previously discussed, assuming the petitioner's 
qualifications are unique, the national interest waiver was not intended to alleviate skill shortages in 
a given field. /d. at 221. Regardless of the petitioner's particular experience or skills, even 
assuming they are unique, the benefit that his skills or background will provide to the United States 
must also considerably outweigh the inherent national interest in protecting U.S. workers through the 
employment certification process. /d. In addition, states that the petitioner inspired him 
to incorporate the single incision surgery technique in his practice, but he does not identify any other 
surgeons whose work that the petitioner has influenced. Again, there is no evidence demonstrating 
that the petitioner originated or pioneered the single incision surgery technique. While the petitioner 
coauthored an article about teaching the rocedure to other surgical residents at 
there is no documentation showing that the petitioner's specific teaching 
methodologies have been applied in surgical residency programs throughout the country, that his 
findings are frequently cited by independent res~rchers, or that his work has otherwise influenced the 
field as a whole. 
further stated: 
In one of his presentations at the prestigious . 
, [the petitioner] presented his findings that removing the band from its 
insertion site can cause postoperative sepsis in patients. He then presented an alternative way 
to avoid that sepsis by removing the band from a different location in the stomach. These are 
a few examples of how [the petitioner] has influenced the field of Minimally Invasive 
Laparoscopic Surgery. 
indicates that the petitiOner "presented an alternative wav to avoid [ ] sepsis by 
removing the band from a different location in the stomach" in his presentation, but does 
not provide specific examples of how the petitioner's method is being utlltzed by others throughout 
the field or has otherwise influenced the field of minimally invasive laparoscopic surgery as a whole. 
In addition, the petitioner did not submit citation evidence demonstrating that his findings have 
impacted the field. 
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Page 10 
, stated: 
[The petitioner] has helped to increase the knowledge of many surgeons in our field through 
the presentations of his work at many prestigious national and international surgical 
conferences. For example his presentation named · 
- - - -
-
~ ~ ~ ~ was very well received. This 
presentation has influenced the field of surgery as a whole. More specifically, through this 
presentation [the petitioner] showed that how a single incision laparoscopy can easily be 
incorporated in surgical residency training. As more and more surgical residents will be 
trained in this technique, the United States will soon have many surgeons skilled in this 
unique technique. 
asserts above that the petitioner's presentation at the conference "was very well 
received" and "has influenced the field as a whole." However, USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 
(D.C. Dist. 1990). There is no supporting evidence showing that the petitioner's findings have been 
frequently cited by independent researchers or have otherwise influenced the field of surgery as a 
whole. 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)). 
In addition, asserts that "more and more surgical residents will be trained" in single 
incision laparoscopy, and that "the United States will soon have 
many surgeons skilled in this unique 
technique." While offers his opinion regarding the potential impact of the petitioner's 
work, he fails to provide specific examples of how the petitioner's specific findings and methods 
have already been implemented in surgical residency training programs throughout the United 
States. Again, eligibility must be established at the time of filing. 8 C.P.R. § 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. 
While the petitioner's published and presented findings have value, any research must be original 
and likely to present some benefit if it is to receive funding and attention from the scientific or 
medical community. In order for a university, publisher, conference organizer, or grantor to accept 
any research for graduation, publication, presentation, or funding, the research must offer new and 
useful information to the pool of knowledge. Not every researcher who performs original research 
that adds to the general pool of knowledge stands out from that of his peers at a level sufficient to 
justify a waiver of the job offer requirement. 
The director denied the petition on March 9, 2013, stating: "Without evidence that the petitioner's 
research has found wide application throughout his field, or frequent . . 
. independent citation by 
other researchers, USC IS cannot find that his work has influenced the field as a whole." The 
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director further stated the record did not establish that the "petitioner will serve the national interest 
to a substantially 
greater degree than would similarly employed U.S. workers." 
On appeal, the petitioner submits citation information from reflecting an aggregate of 
two cites to his body of research work. One of the submitted citations from the 
is a self-cite by the petitioner's coauthors Self-citation 
is a normal, expected practice. Self-citation cannot, however, demonstrate the response of 
independent researchers. In addition, the article citing to the petitioner's work in 
was published in 2013. Again, eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. The petitioner has not established that a 
single independent cite to his body of research work at the time of filing is an indication that his 
findings have influenced the field as a whole. 
Counsel argues that the director ignored and failed to give sufficient weight to the letters from 
surgical experts who discussed the petitioner's achievements. 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 testimonial and 
documentary evidence, where available." Id. If testimonial evidence lacks specificity, detail, or 
credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter of Y-B, 
21 I&N Dec. 1136 (BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expett 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 a petitioner's eligibility for the 
benefit sought. !d. The submission of letters of support from the petitioner's professional contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the petitioner's eligibility. See id. at 795-796; 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"). Thus, the content of the experts' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters solicited 
by a petitioner in support of an immigration petition are of less weight than preexisting, independent 
evidence that one would expect of a surgery researcher who has influenced the field as a whole. 
Counsel points to two non-precedent decisions in which the AAO sustained appeals for a research 
pathologist and a network traffic engineering researcher dated June 3, 2003 and August 12, 2005, 
respectively. Counsel argues that the AAO's August 12, 2005 decision, which acknowledged the value 
of reference letters, comports with the present matter. Each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, 
USCIS is limited to the information contained in the record of proceeding. See 8 C.F.R. 
§ 103.2(b)(16)(ii) . While AAO precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished AAO decisions are not similarly binding. See 8 C.F.R. 
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Page 12 
§ 103.3(c). Furthermore, counsel has not established that the facts of the instant petition are similar 
to those in the unpublished decisions. 
Counsel asserts that the director "erred by replacing the 'preponderance of evidence' standard with a 
stricter "clear and convincing' standard." Counsel further states: 
[T]he director has greatly overstated the degree of influence required for an alien to qualify for 
the national interest waiver. It is absolutely true that the petitioner cannot simply show that he is 
an above-average surgeon. This does not mean, however, that the petitioner must be a 
"household name" who "shook the field of medical research." 
In most administrative immigration proceedings, the petitioner must prove by a preponderance of the 
evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 
2010). The truth is to be determined not by the quantity of evidence alone but by its quality. /d. at 
376. The record reflects that at the time of filing the petitioner was a surgical resident who was 
scheduled to complete his general surgery training on June 30, 2013. The director's analysis did not 
require the petitioner to demonstrate that he was a "household name" who "shook the field of medical 
research." Instead, following NYSDOT, the director stated that "[a] qualifying individual must present a 
record of achievement having some degree of influence on the field as a whole." See NYSDOT at 219, 
n. 6. In the present matter, the documentation submitted by the petitioner fails to demonstrate by a 
preponderance of the evidence that he will serve the national interest to a substantially greater degree 
than would an available U.S. worker with 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 his past record of achievement is at a level 
sufficient to waive the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. 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 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.