USCIS has announced new evidentiary standards for determining whether a physician is one of national or international renown for H-1B purposes, through the adoption of Matter of T-O-S-U- (AAO Jan. 4, 2017), as a precedent decision of the Administration Appeals Office.
8 CFR § 214.2(h)(4)(viii) requires that international graduates of medical schools meet certain criteria for H-1B classification, in addition to those which are required of all specialty occupation nonimmigrants. In particular, the law requires that physicians have passed Steps 1, 2, and 3 of the USMLEs, or the predecessor Federation Licensing Examination. Exception is made for “physicians of national or international renown,” but there was very limited guidance prior to Matter of T-O-S-U- as to what this phrase exactly means.
Matter of T-O-S-U- lays out criteria, which while not exclusive, is highly instructive.
Specifically, the case suggests that petitioners provide the following, as excerpted:
The regulations do not currently provide a list of the specific types of evidence for demonstrating that an alien is a physician of national or international renown under 8 C.F.R. §214.2(h)(4)(viii)(C). We therefore reviewed and took into account the types of documentation that are often persuasive in establishing eligibility for these cases, as well as the categories of probative evidence that are described in the regulations for other classifications involving national or international renown, recognition, or acclaim, including H-1B distinguished merit and ability (models), O-1 extraordinary ability, P-1 internationally recognized, and labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts. See 8 C.F.R. §§ 204.5(h)(3), 214.2(h)(4)(vii)(C), (o)(3)(iii)-(v), (p)(4)(ii)(B), (p)(4)(iii)(B)(3). The following is a non-exhaustive list of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption at 8 C.F.R. § 214.2(h)(4)(viii)(C):
• Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards in the field of medicine;
• Evidence of the beneficiary’s authorship of scientific or scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
• Published material about the beneficiary’s work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
• Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
• Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
• Evidence of the beneficiary’s participation as a judge of the work of others in the medical field;
• Documentation of the beneficiary’s membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
• Evidence that the beneficiary has received recognition for his/her achievements or contributions from recognized authorities in the field of medicine; and
• Any other evidence demonstrating the beneficiary’s achievements, contributions, and/or acclaim in the medical field.
This criteria still leaves much for interpretation. In the confusing world of merits-based immigration, it can be difficult to discern the difference between one who is “extraordinary,” “exceptional,” “outstanding,” “renowned” and other similar characterizations of accomplishment. In Footnote 11 of the decision, the T-O-T-S-U- Court expressly says that “national or international renown” standard is not the same as required to demonstrate extraordinary ability. Footnote 11 also recognizes the standard is not the same as for determining that an “alien is of exceptional ability in the sciences.” I found it also noteworthy that one criteria is having served as a panelist or speaker at a medical conference. In likelihood, having spoken a few times will not be enough to establish national or international renown, but a pattern of speaking, combined with other supporting material, may make a compelling case.
My initial conclusion: the T-O-S-U- standards seem akin to the extraordinary alien standards, without quite the same rigor of showing three or more category qualifications. In the case at hand, which was approved, the Court gives a great deal of weight to one particular article, “which garnered numerous independent ciations by peers in professional journals, major trade publications, and other major media.”
The criteria leaves much to interpretation, and the agency will probably remain somewhat inconsistent on minimum showings for these types of petitions. The decision is helpful as a starting point for determining eligibility, where guidance has formerly been almost completely absent.
Link to decision: Matter of T-O-S-U-, with January 4, 2017 Policy Memorandum