Case Study: Appeal Dismissed on a NIW Petition of an Alien Physician

by Victoria Chen, Esq., J.D.
Background: The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as a member of the professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a pediatrician. 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 beneficiary qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States. The Maulana Azad Medical College, New Delhi, India, awarded the petitioner the degree of Bachelor of Medicine, Bachelor of Surgery in 1988. The record indicates that this degree has been recognized by competent licensing authorities as the equivalent of an M.D. degree from an accredited U.S. institution. The petitioner has passed the necessary examinations required for graduates of foreign medical schools, and has applied for a license to practice medicine in the State of California. The petitioner is thus classifiable as a member of the professions holding an advanced degree.

USCIS Decision:The director denied the petition, stating that the petitioner had failed to establish that his work has set him apart from other pediatricians to such an extent that he will substantially benefit prospectively the United States, or that his work will have an impact on the medical field that will be significantly greater than that of other pediatricians.

USCIS’s Reasons of Denial : The director acknowledged the intrinsic merit and national scope of the petitioner’s occupation, but found that the petitioner had submitted no objective, documentary evidence of his impact or influence on his field.

AAO’s Decision: The bulk of counsel’s appeal focuses on the fact that the petitioner is a physician in a medically underserved area. However, the AAO emphasized that simply being a physician in an underserved area does not mandate automatic approval of every petition of this type, without any further consideration of the specific facts of the case. Further, the AAO stated that the record does not establish that the petitioner plans to remain in a medically underserved area beyond his residency period, or indicate where he will practice medicine after his residency. In the absence of evidence that the petitioner will be employed permanently in in a medically underserved area, the fact that the area is in a Health Professional Shortage area is accorded little weight in this proceeding.

The AAO therefore ordered that the appeal is dismissed.

from Chen Immigration Law Associates

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