sustained EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-K-M-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 4, 2016 
CERTIFICATION OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician, seeks classification as a member of the professions holding an advanced 
degree. See Immigration and Nationality Act (the Act) § 203(b)(2), 8 U.S.C. § 1153(b)(2). The 
Director, Texas Service Center, approved the petition. The matter is now before us on certification. 
The Director's decision will be affirmed and the petition will be approved. 
The Director found that the Petitioner qualifies for classification as a member of the professions 
holding an advanced degree and that a waiver of a job offer would be in the national interest because 
the Petitioner seeks to practice medicine in a medically underserved area. On certification, the 
Petitioner submits information concerning the practice of osteopathic medicine in the United States. 
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) 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. 
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(ii) 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-
(I) (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 ofthe Secretary ofVeterans Affairs; and 
(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. · 
The regulation at 8 C.F.R. § 204.12(c)(4) requires the physician to establish that he meets the 
admissibility requirements under section 212(a)(5)(B) of the Act, which states: 
Unqualified physicians. - An alien who is a graduate of a medical school not 
accredited by a body or bodies approved for the purpose by the Secretary of 
Education . . . is inadmissible, unless the alien (i) has passed parts I and II of the 
National Board of Medical Examiners Examination [NBMEE] (or an equivalent 
examination as determined by the Secretary of Health and Human Services) and (ii) is 
competent in oral and written English. For purposes of the previous sentence, an 
alien who is a graduate of a medical school shall be considered to have passed parts I 
and II of the National Board of Medical Examiners if the alien was fully and 
permanently licensed to practice medicine in a State on January 9, 1978, and was 
practicing medicine in a State on that date. 
II. ELIGIBILITY FOR THE VISA CLASSIFICATION SOUGHT 
The Petitioner graduated from on 
May 24, 2009, and received his Doctor of Osteopathic Medicine degree. Accordingly, the Petitioner 
qualifies as a member of the professions holding an advanced degree. The remaining issue is whether a 
waiver of a job offer would be in the national interest based on the Petitioner practicing medicine in 
medically underserved areas. Section 203(b)(2)(B)(ii) of the Act provides a national interest 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. 
III. FACTS 
The Petitioner filed the Form I-140, Immigrant Petitioner 
for Alien Worker, on September 5, 2014. The 
submitted documentation included a May 2012 employment agreement with 
indicating that the Petitioner would provide services as a "Pediatric Hospitalist" physician 
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for a period of three years. In addition, the Petitioner provided pay statements reflecting his 
employment with and an April 2014 letter from the president of stating that the Petitioner 
has worked for the company full-time since July 2012. The record also included a May 2014 letter 
from the Florida Department of Health (FDH} indicating that the Petitioner's employment as a pediatric 
physician with "is within a designated low income primary care health professional shortage 
area" and that the FDH finds the Petitioner's work "to be in the public interest." Furthermore, the 
Petitioner submitted information from the U.S. Department of Health and Human Services (HHS) 
showing that the hospital where he practiced in was within a health professional 
shortage area. 
The documentation provided also included an August 2015 letter from 
Pediatric Program Director at stating that the Petitioner 
completed his pediatric residency at from June 2009 through June 2012. In addition, the 
Petitioner submitted a copy of his Pediatric Residency Certification from and copies of his 
Form W-2, Wage and Tax Statements, demonstrating his employment with from 2009 through 
2012. The record also included documentation from HHS reflecting that was in a primary 
care health professional shortage area. Lastly, the Petitioner provided a letter from the FDH stating 
that his medical service as a pediatric resident was in a HHS-designated health 
professional shortage 
area and was in the public interest. 
IV. ISSUES AND ANALYSIS 
A. Is graduation from an accredited medical school sufficient, or must the individual have passed 
parts I and II ofthe NBMEE (or equivalent licensing exam)? 
The Director's decision indicated that there appears to be a conflict between the governing laws and 
regulations and the Memorandum from Michael Aytes, USCIS, HQ 70/6.2, Interim guidance for 
adjudicating national interest waiver (NJW) petitions imd related adjustment applications for 
physicians serving in medically underserved areas in light of Schneider v. Cherto([, 450 F.3d 944 
(9th Cir. 2006) ("Schneider decision") (January 23, 2007), http://www.uscis.gov/sites/default/ 
files/US CIS/Laws/Memoranda/Static_ Files_ Memoranda/schneiderintrmO 12307. pdf. As previously 
mentioned, the regulation at 8 C.P.R.§ 204.12(c)(4) requires the physician to establish that he meets 
the admissibility requirements under section 212(a)(5)(B)ofthe Act, which states that an individual 
who is a graduate of a medical school not accredited by a body or bodies approved for the purpose 
by the Secretary of Education is inadmissible, unless he or she (i) has passed parts I and II of the 
NBMEE (or an equivalent examination as determined by the Secretary of HHS) and (ii) is competent 
in oral and written English. 
In addition, section IX of the January 2007 Aytes memorandum updating the Adjudicator's Field 
Manual (AFM) stated: 
Admissibility Requirements Established by Section 212(a)(5)(B) of the Act. The 
physician must meet the admissibility requirements established by section 
212(a)(5)(B) of the Act, relating to examinations that immigrant physicians must pass 
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Matter of N-K-M-
in order to immigrate. Evidence must be provided that the physician has passed parts 
I and II of the [NBMEE] or an equivalent examination as determined by the Secretary 
of [HHS], and evidence that the beneficiary is competent in oral and written English. 
Chapter 22.2(j)(6)(F)(iv) of the AFM, which incorporates the Aytes memorandum, while not 
specifically identifying an exception to the examination and English competency requirements, 
unmistakably states that the physician must meet the admissibility requirements established by the 
Act. The plain language of section 212( a)( 5)(B) of the Act indicates that requirements (i) and (ii) are 
applicable only if the. physician graduated from a medical school that was not accredited by an 
organization approved by the U.S. Secretary of Education. Therefore, we do not find a conflict 
between the AFM, the regulations, and the Act. Under current guidance, the physician must 
graduate from a medical school accredited by an organization approved by the Secretary of 
Education. If the physician cannot show this, then the physician must demonstrate that he or she has 
passed parts I and II of the NBMEE, or an equivalent examination as determined by the Secretary of 
Education, and that he or she is competent in oral and written English. Accordingly, a physician 
whose medical school was accredited by an organization approved for that purpose by the U.S. 
Secretary of Education at the time of his or her graduation is not subject to provisions (i) and (ii) 
under section 212(a)(5)(B) ofthe Act, and thus satisfies the regulation at 8 C.P.R.§ 204.12(c)(4). 
B. Are Doctors of Osteopathy eligible for a national interest waiver? 
The regulation at 8 C.P.R. § 204.12(a) provides that "[a]ny alien physician (namely doctors of 
medicine and doctors of osteopathy)" may file a petition seeking a national interest waiver. Outside 
of the immigration regulations, several other expert sources use a similar definition for the term 
"physician." For example, the U.S. Department of Health and Human Services (HHS) defines a 
physician as "a doctor of medicine or osteopathy." 45 C.P.R.§ 60.3 (2015). The U.S. Department 
of Labor's (DOL) Occupational Outlook Handbook (Handbook) reports that there are two types of 
physicians: medical doctors and doctors of osteopathic medicine.1 Lastly, the American Medical 
Association describes the term physician as a doctor of medicine or doctor of osteopathy.2 
With regard to this issue, the Director's decision stated: 
After an exhaustive review of all known United States organizations concerning 
osteopathic medical schools, no organization appears on the surface to have been 
approved by the Secretary of Education for the purpose of establishing admissibility 
1 While it is not a binding or exclusive resource, the Handbook is an expert and persuasive source of information on the 
duties and educational requirements of a range of occupations. The Handbook is available on the Internet at 
http://www.stats.bls.gov/oco/. U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-
15 ed., Physicians and Surgeons, on the Internet at http://www.bls.gov/ooh/healthcare/physicians-and-surgeons.htm#tab-
2 (last visited December 17, 20 15). 
2 See the American Medical Association (AMA) website, http://www.ama-assn.org/ama (last visited December 17, 
2015). 
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Matter of N-K-M-
under INA § 212(a)(5)(B), although the American Osteopathic Association has 
accredited several osteopathic medical schools for the purpose of State licensure 
requirements to practice osteopathic medicine in the United States. Additionally, 
after an exhaustive review of all known United States organizations concerning 
osteopathic licensing examinations, no osteopathic licensing examination appears on 
the surface to have been determined by HHS to be an equivalent examination to 
NBMEE for the purpose of establishing admissibility under INA § 212(a)(5)(B). In 
essence, all known licensing examinations and medical schools leading to a doctor of 
osteopathy degree or licensing as a doctor of osteopathic medicine are categorically 
barred under INA§ 212(a)(5)(B). 
The Director's decision noted that the regulation at 8 C.F.R. § 204.12(a) specifically includes 
"doctors of osteopathy" as eligible for the national interest waiver. However, the decision stated that 
there is no known accrediting organization for osteopathic medical 
schools that has been recognized 
by the U.S. Secretary of Education, thus barring all doctor of osteopathy physicians from receiving a 
national interest waiver and hindering the legislative goal of permitting qualified osteopathic 
physicians to obtain visas under the classification sought. 
According to the U.S. Department of Education's website, the Secretary of Education has recognized 
the American Osteopathic Association (AOA) as the accrediting organization for osteopathic 
medical programs. See http://www2.ed.gov/admins/finaid/accred/accreditation _pg7.html, accessed 
on November 30, 2015, copy incorporated into the record of proceedings. In the present matter, the 
Petitioner submitted documentation from the AOA identifying 
as an accredited osteopathic medical school. In addition, the AOA 
Commission on Osteopathic Accreditation lists 
as having been accredited since the 1980s. See http://www.osteopathic.org/ 
inside-aoa/accreditation/predoctoral%20accreditation/Documents/current-list-of-colleges-of­
osteopathic-medicine.pdf, accessed on December 17, 2015, copy incorporated into the record of 
proceedings. Therefore, at the time of the Petitioner's graduation on May 24, 2009, 
had AOA accreditation. 
Furthermore, the National Board of Medical Examiners is responsible for licensing examinations for 
graduates of accredited medical programs and accredited osteopathic medical programs, both of 
whom may take the U.S. Medical Licensing Examination (USMLE).3 See http://www.nbme.org/ 
students/licensing.html, accessed on November 30, 2015, copy incorporated into the record of 
proceedings. Accordingly, the Director's decision is incorrect in stating that there is no accrediting 
organization approved by the Secretary of Education for osteopathic medical schools and no 
recognized examination for doctors of osteopathic medicine. Even if USCIS determined that an 
accredited osteopathic medicine program is not an accredited "medical school" for the purposes of 
admissibility under section 212(a)(5)(B) of the Act, a physician who is a doctor of osteopathy would 
3 Chapter 22.2(j)(6)(F)(iv) of the AFM states that the USMLE is currently recognized as an equivalent exam to parts I 
and II of the NBMEE. 
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still be admissible assuming he or she has passed the USMLE and is competent in oral and. written 
English. 
V. CONCLUSION 
The 
Petitioner is a graduate of _ _ and at 
the time of his graduation that program was accredited by the AOA, which the U.S. Secretary of 
Education has recognized as the accrediting agency for osteopathic medical programs. On the basis 
of the evidence submitted, the Petitioner has established that a waiver of the requirement of a job offer, 
and thus of a 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 been met. 
ORDER: The initial decision of the Director, Texas Service Center, is affirmed, and the petition 
is approved. 
Cite as Matter ofN-K-M-, ID# 16271 (AAO Jan. 4, 2016) 
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