sustained EB-2 NIW Case: Pediatric Hematology And Oncology

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JAN 2 4 2014 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an AI ien 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 decision s. 
Thankyou, 
AJ0J tAl n u0\_) C Ron Rosenberg 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be sustained. 
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. At the time of 
filing, the petitioner was working as pediatric hematology and oncology specialist at 
in Washington, D.C. 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 a letter from counsel. 
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) fu 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 
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). 
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A supplementary notice regarding the regulations implementing the Immigration 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. Cornrn'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 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner 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. 
Eligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought. Assertions regan,iing 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 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. 
In addition to published articles, presentations, citation records, memberships, and other information 
pertaining to her work in the field, the petitioner submitted various letters of support describing the 
petitioner's research as "novel," "groundbreaking," and as the "first-of-its-kind performed in the 
United States ... constitut[ing] a tremendous advancement to the finding [sic] of cancers afflicting 
infants, children and adolescents worldwide." The petitioner's support letters further indicated that 
her research is "regarded as very important in shedding new light on an important clinical issue and 
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NON-PRECEDENT DECISION 
Page4 
in so doing has directly led to improvements in patient care" and has "contributed significantly to 
increased cure rates for numerous childhood cancers," "the field of hematology-oncology, and it will 
provide a framework for future clinical trials to treat cancer." The consensus of the letters is that the 
petitioner has "earned . 
. . considerable attention in the Hematology Oncology field" and that her 
original contribution represents a "significant advance in therapeutic research." 
The director denied the petition on March 18, 2013. The director acknowledged that the petitioner's 
work at is in an area of substantial intrinsic merit, but found the 
petitioner had not demonstrated that the proposed benefits of her work would be national in scope 
and that she would benefit the national interest to a greater extent than an available U.S. worker with 
the same minimum qualifications . The director therefore concluded that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. 
On appeal, counsel contends that the petitioner "has made significant contributions to the field" and 
that her research work "has impacted the national interest." Counsel points to the petitioner's 
published work, presentations, citation evidence, and testimonial letters as documentation of her 
eligibility for the national interest waiver. 
In this matter, the evidence submitted by the petitioner is sufficient to meet the three-prong test 
established by NYSDOT. According to the preceding medical experts' statements, the benefits arising 
from the petitioner's work are national in scope and have significantly impacted the field. The 
record reflects that the petitioner's research findings are important not only to the institution where 
she works, but throughout the greater field as well. Leading medical professionals, including 
physicians and researchers with no institutional or personal ties to the petitioner, have acknowledged 
the value of her work and its influence · on the field as a whole. 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). Following this standard, the 
petitioner has met her burden of proof by a preponderance of evidence. 
The evidence in the record establishes the significance of this petitioner's research, as opposed to the 
general area of research, and identifies specific benefits attributable to her work that have influenced the 
field as a whole. Therefore, on the basis of the evidence submitted, the petitioner has established that a 
waiver of the requirement of a job offer, and thus 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 been met. 
ORDER: The appeal is sustained and the petition is approved.