sustained EB-2 NIW Case: Otolaryngology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16,2015 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician researcher in the field of otolaryngology, seeks classification as a member 
of the professions holding an advanced degree, and 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. See 
Section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). The 
Director, Texas Service Center, denied the petition. The matter is now before us on appeal. The 
appeal will be sustained. 
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. 
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. 
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Matter of B-S-
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 
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). 
In reNew York State Dept a/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 the beneficiary 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 the 
beneficiary 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the beneficiary's past record justifies projections of future benefit to the national interest. !d. at 
219. The petitioner's assurance that the beneficiary will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The term "prospective" is included here to require 
future contributions by the beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
II. PERTINENT FACTS AND PROCEDURAL HISTORY 
The Petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on April 30, 2014, at 
which time he was working as a Postdoctoral Research Fellow at the 
and the m 
Massachusetts. According to an introductory statement and accompanying evidence, the Petitioner's 
research in this position centered on thyroid cancer and his past work, conducted ip Iran, included 
research on head and neck surgeries as well as endocrine-related disorders including diabetes and 
associated complications. 
In support of the Form I -140, the Petitioner submitted evidence of two books and five journal 
articles that he had written or co-written , data regarding citations of his published work, and copies 
of additional manuscripts he had submitted for publication. Documentation also included evidence 
that the Petitioner has held positions on the editorial board of two medical journals, and information 
about the ranking and impact factors of several other journals for which he regularly serves as a 
peer-reviewer. In addition, the Petitioner provided evidence and information about several medical 
conferences at which he has presented his research and evidence of his memberships in various 
professional associations. 
The Petitioner 's supporting materials also included letters from current and former supervisors and 
colleagues, as well as from independent professionals , describing his research projects and attesting 
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Matter of B-S-
to the significance of his research and his role in the field. Each of the letters described ways in 
which the Petitioner's research findings are currently used by practicing physicians. For instance, 
Director of Head and Neck Surgery for the 
stated that the Petitioner 's research on nose surgery 
"has been an essential study" that enables surgeons to select the most appropriate surgical technique 
for each patient. Professor of at 
in Iran, stated that the Petitioner 's research on treatment strategies for vocal cord 
nodules "has provided critical data" to assist practitioners in creating optimal treatment plans, and he 
attested to personal knowledge that "many leading researchers have found these 
results to be of high importance." In addition, Director of the 
Division and the Thyroid and Parathyroid Surgical Division at 
and Associate Professor of Head and Neck Surgery at 
stated that the Petitioner 's research initiatives related to advanced thyroid cancers 
have "provided important clinical data to determine optimal thyroid 
cancer treatment and detection 
strategies." 
The submitted letters also noted the prestige of the conferences and journals in which the Petitioner 
has presented his findings. stated that "the prominence of (the Petitioner's] career in 
otolaryngology" is evidenced by the caliber of the conferences at which he is invited to present his 
research, and by his "active role" as an editor and reviewer for journals in the field. 
, Chief of the Division of Preventive Medicine at noted that 
the Petitioner has been invited twice to present his research at the 
and "has been regularly solicited to do peer-review work" 
for the which is "one of the most cited general medical journals in the 
world." The Petitioner submitted letters from the recognizing him as 
one of "our best reviewers. " 
The Director issued a request for evidence (RFE) on November 22, 2014, requesting additional 
documentation to establish a "demonstrable record of previous field-wide influence." In response to 
the RFE, the Petitioner submitted evidence showing that he completed his research fellowship on 
May 31, 2014 , and had since been working as a research scholar at 
also affiliated with The Petitioner provided evidence of additional 
publications since filing the Form I-140, including a chapter of a medical textbook on diabetes, and 
updated citation documentation for all of his publications. He also submitted copies of invitations he 
has received to present his work at conferences and to serve as a reviewer for medical journals ; 
several of the invitations reference his specific research and/or his reputation and expertise. 
Additional letters submitted in response to the RFE echoed previous statements regarding the high 
caliber of the journals and conferences with which the Petitioner has been involved, and the 
prominence of the Petitioner's work and its current use in clinical practice. 
Associate Director of Interventional Endoscopy at and Assistant 
Professor of Medicine at 
history of leadership and engagement in the 
stated that the Petitioner has a "very strong 
world of academic journals ," and attested to the 
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Matter of B-S-
significance of his editorial board memberships. With regard to the recent medical textbook for 
which the Petitioner authored a chapter, characterized the book as "a major and 
important new medical textbook, which will be purchased and read by students nationwide and 
globally." In addition, Assistant Professor at 
Oncology Division, stated that "[t]extbook authorship is without doubt one of the more 
influential components of scholarship , and here [the Petitioner] has played a key role in one of the 
most important new books this year." Many of the letters also stated that is 
the top-ranked medical school for research, and that the Petitioner's selection for employment as a 
researcher at that institution is an additional indication of the prominence and influence of his work 
in the field. · 
The Director denied the Form I-140 on June 10, 2015, finding that the Petitioner had not established 
sufficient impact and influence on his field to meet the third prong of the NYSDOT national interest 
analysis. On appeal, the Petitioner contends that his previously submitted evidence establishes his 
eligibility for the benefit sought. Accompanying the appeal, the Petitioner submits evidence of his 
recent research, publications , conference presentations , and peer-review work, as well as updated 
citation data regarding his publications. In addition, the Petitioner submits a May 15, 2015, letter 
from documenting his current appointment as a Research Fellow for 
that organization. 
Ill. ANALYSIS 
As stated above, the analysis set forth in NYSDOT requires a petitioner to demonstrate 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. To do this, a petitioner must establish "a past history of 
demonstrable achievement with some degree of influence on the field as a whole." !d. at 219, n. 6. 
The letters submitted by the Petitioner provide specific descriptions of how his research has 
influenced others in the field, and explain the importance of his work. These statements are 
supported by documentary evidence in the record, including citation records as well as evidence and 
information regarding the specific conferences and journals through which the Petitioner has 
disseminated his research findings. The record also includes documentation to support statements 
regarding his leadership and engagement with regard to medical journals . We find the evidence 
sufficient to demonstrate that the Petitioner 's research has had a degree of influence on his field of 
research as a whole, and that his current ongoing research stands to benefit the national interest. We 
therefore find that the record justifies projection that the Petitioner will serve the national interest to 
a significantly greater degree than would an available U.S. worker having the same minimum 
qualifications. 
III. CONCLUSION 
As discussed above, the evidence in the record establishes that the benefit of retaining this 
Petitioner 's services outweighs the national interest that is inherent in the labor certification process. 
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Matter of B-S-
Therefore, on the basis of the evidence submitted, the Petitioner has established that a waiver of the 
requirement of the job offer and 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, the Petitioner has met that burden. 
ORDER: The appeal is sustained. 
Cite as Matter of B-S-, ID# 15361 (AAO Sept. 16, 2015) 
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