remanded EB-2 NIW Case: Medicine

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
mtifvlng data deleted 
 U. S. Citizenship 
prevent d4~~1~ unwarraoted and Immigration 
%mdm of wmal ~rlvao 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant 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. 3 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
hobert P. Wiernann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. !j 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner describes 
herself as a "doctor, researcher, acupuncturist, rnassagist. " The petitioner asserts that an exemption fiom 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 fkom the requirement of a job offer would be 
in the national interest of the United States. The director based this finding on regulations relating to physicians 
seeking to practice medicine in medically underserved areas. The director also found that the petitioner had failed 
to establish that she meets certain admissibility standards for graduates of foreign medical schools. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) Subject to clause (ii), 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. 
($(I) The Attorney General shall grant a national interest waiver pursuant to clause (i) 
on behalf of any alien physician with respect to whom a petition for preference 
classification has been filed under subparagraph (A) if-- 
(aa) the alien physician agrees to work full time as a physician in an area or 
areas 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; and 
Page 3 
(bb) a Federal agency or a department of public health in any State has 
previously determined that the alien physician's work in such an area or at such 
facility was in the public interest. 
Generally, the controlling regulations for petitions seeking to classify an alien under section 203(b)(2) of the Act 
are found at 8 C.F.R. $ 204.5(k). When an alien seeking classification under that section also seeks a national 
interest waiver of the job offer requirement, controlling case law can be found in Matter of New York State Dept. 
of Transportation, 22 I&N Dec. 215 (Comm. 1998). For physicians seeking to practice in designated shortage 
areas or at facilities operated by the Department of Veterans Affairs (VA), additional regulations are found at 
8 C.F.R. 4 204.12. These regulations supersede Matter of New York State Dept. of Transportation with regard to 
those certain physicians (but not all physicians in general). 
In this proceeding, the petitioner has identified herself as (among other things) a physician engaged in the clinical 
treatment of patients. The petitioner has not, however, indicated that she seeks to practice medicine in a 
designated shortage area or at a VA facility. Rather, the petitioner bases her claim more generally on the benefits 
that, she claims, will accrue fiom her combined use of standard "Western" medicine and traditional Chinese 
medicine. Therefore, the petitioner's claim falls under the umbrella of 8 C.F.R. 
 204.5(k) and Matter of New 
York State Dept. of Transportation. 
In denying the petition, the director did not address the merits of the petitioner's medical claims with respect to 
Matter of New York State Dept. of Transportation. Instead, the director cited numerous requirements found in 
8 C.F.R. $ 204.12, regulations which apply only to physicians in shortage areas and VA facilities. These 
regulations do not apply in the present proceeding, and the director erred by applying them to this proceeding. 
The director essentially denied the petition because the petitioner failed to meet requirements that she did not, in 
fact, have to meet. At the same time, the director gave the petition no consideration with respect to Matter of Nav 
York State Dept. of Transportation, which applies to this petition. 
The director also found that the petitioner had submitted "no evidence showing that the physician had passed the 
FLEX, NBMEE, or USMLE examinations." This evidently refers to section 212(a)(5)(B) of the Act, 8 U.S.C. 
11 82(a)(5)(B), which indicates that graduates of foreign medical schools are inadmissible to the United States 
unless they have passed certain competency examinations and other requirements. 8 C.F.R. 4 204.12(~)(5) 
requires evidence that the alien physician meets the admissibility requirements established by section 
212(a)(5)(B) of the Act. This regulation, however, applies only to alien physicians who intend to practice in an 
underserved area or at a VA facility pursuant to section 203(b)(2)(B)(ii) of the Act. For other alien graduates of 
medical schools without certain accreditation, section 212(a)(5)(B) of the Act lists important requirements, but 
these grounds of inadmissibility are generally of concern at the adjustment stage, rather than at the earlier petition 
stage to which the present proceeding relates. The director may well deny a Form 1-485 adjustment application 
based on an alien's inadmissibility, but that is typically not a basis for denying the underlying Form 1-140 
petition. See Matter of 0-, 8 I&N Dec. 295 (BIA 1959). As explained above, the special provisions at 8 C.F.R. 
!j 204.12(~)(5) do not apply in this case. 
Page 4 
Because the denial appears to rest entirely on inapplicable grounds, the director must review the petition and issue 
a new decision based only on 8 C.F.R. § 204.5(k), Matter ofNav York State Dept. of Transportation, and any 
other regulations, factors or requirements that demonstrably apply to the petition as filed. 
Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted 
and should allow the petitioner to submit additional evidence in support of her position within a reasonable period 
of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for hrther action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.