274 F.3d 533 (D.C. Cir. 2001)
Shubing Liu, M.D., Appellantv.Immigration and Naturalization Service, et al., Appellees
No. 00-5345
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2001Decided December 28, 2001

Appeal from the United States District Court  for the District of Columbia ( 99cv02511)
Frederic W. Schwartz, Jr. argued the cause and filed the  briefs for appellant.
Fred E. Haynes, Assistant U.S. Attorney, argued the cause  for appellees.  With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, R. Craig Lawrence and Michael J.  Ryan, Assistant U.S. Attorneys.
Before:  Sentelle, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
Dr. Shubing Liu appeals from  the judgment of the district court dismissing his action for  judicial review of the Immigration and Naturalization Service's denial of his second preference employment-based immigration petition.  Because Dr. Liu has been granted first  preference employment-based immigrant status, we hold that  his case is moot.


2
Dr. Liu, a Chinese citizen engaged in medical research in  the United States, filed a second preference employmentbased petition (an "EB-2" petition) pursuant to 8 U.S.C.  § 1153(b)(2), which allows visas to be granted to aliens of  exceptional ability and aliens who are members of the professions holding advanced degrees. Petitions for EB-2 status  generally must include both a job offer and a certification  from the Department of Labor.  See 8 C.F.R. § 204.5(k). Although Dr. Liu had a job offer from the University of  Pittsburgh School of Medicine, he lacked the requisite labor  certification.  Therefore, Dr. Liu sought a waiver pursuant to  8 U.S.C. § 1153(b)(2)(B)(i), which permits the INS, via authority delegated from the Attorney General, to waive the job  offer and labor certification requirements if such a waiver is  found to be in the "national interest."  See Kooritzky v.  Reich, 17 F.3d 1509, 1510 n.1 (D.C. Cir. 1994).


3
In November 1998, the INS denied Dr. Liu's application for  a waiver, finding that a waiver would not be in the national  interest.  On Dr. Liu's administrative appeal, the INS Administrative Appeals Unit affirmed.  Dr. Liu then filed the  present complaint.  The district court refused to hear the  case, holding that it lacked jurisdiction.  The court reasoned  that the INS's decision not to grant Dr. Liu a national  interest waiver was discretionary and that the Immigration  and Nationality Act precludes judicial review of discretionary  decisions.  See 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding judicial  review of "any other decision or action of the Attorney  General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title"). The court also concluded that review was not available under  the Administrative Procedure Act.


4
The case is now moot, so the government claims.  Mootness goes to our jurisdiction, see Iron Arrow Honor Soc'y v.  Heckler, 464 U.S. 67, 70 (1983) (per curiam).  It is therefore  an optional ground of decision, and one we have decided to  examine first in view of the more complicated issues  § 1252(a)(2)(B)(ii) presents.  The question of mootness arises  as follows.  After the INS denied Dr. Liu a national interest  waiver and EB-2 status, he filed a first preference employment-based immigration petition (an "EB-1" petition) pursuant to 8 U.S.C. § 1153(b)(1)(B), which allows visas to be  granted to outstanding professors and researchers.  The INS  granted Dr. Liu EB-1 status;  his adjustment application for  legal permanent residence status is now pending.


5
Dr. Liu offers four reasons why his case is not moot. First, he asserts that he would be able to switch jobs more  easily if he had been granted EB-2 rather than EB-1 status. As against this, the government points to the American  Competitiveness in the Twenty First Century Act, arguing  that it allows Dr. Liu to switch jobs as long as the new job is  in the "same or similar occupational classification."  See 8  U.S.C. § 1154(j) (providing that a petition for individual immigrant status that remains unadjudicated for 180 days will  remain valid with respect to a new job "if the new job is in the  same or a similar occupational classification as the job for  which the petition was filed") (emphasis added).  Dr. Liu  fears that the INS might read § 1154(j)'s use of the phrase  "same or similar occupational classification" narrowly, thus  limiting his ability to change jobs while his application for  legal permanent residence status is pending.  He contends  that if he had been granted a national interest waiver and  EB-2 status, then he would be free to switch jobs more easily  because he would only have to show that his new job remained in the "national interest."


6
The trouble is Dr. Liu has given us no reason for supposing  that he might change jobs before the INS acts on his application for legal permanent residence status.  At oral  argument, we invited his attorney to remedy this factual gap  with either representations or affidavits.  He did not do so. To the contrary, Dr. Liu's supplemental brief states that it is  "unlikely" that he will stray far from biological research.  See  Appellant's Supplemental Brief at 6.  In short, all we have is  the conjectural possibility that Dr. Liu might want to switch  jobs and that the INS might construe § 1154(j) narrowly so  as to prevent Dr. Liu from changing jobs.  This simply is not  enough.  See American Family Life Assurance Co. of Columbus v. FCC, 129 F.3d 625, 628 (D.C. Cir. 1997).  To "save  a case from mootness the ongoing injury must be more than a  'remote possibility,' not 'conjectural,' more than 'speculative.' "  Id. (quoting Warth v. Seldin, 422 U.S. 490, 507  (1975)).


7
Second, Dr. Liu claims that if he leaves his job at the  University of Pittsburgh, INS procedures would require that  he wait for an interview with an immigration officer, which  would delay the processing of his green card application. This argument too--as Dr. Liu admits in his supplemental  brief--is based entirely on speculation.  Dr. Liu also forgets  that under the INS's I-485 Standard Operating Procedure,  he would have to wait for an interview even if he had been  granted a national interest waiver and EB-2 status.  See I485 Operating Procedure at 7-3.24.


8
Third, Dr. Liu asserts that his claim for attorney's fees is  sufficient to save the case from mootness.  The law is otherwise.  The "mere fact that continued adjudication would  provide a remedy for an injury that is only the byproduct of  the suit itself does not mean that an injury is cognizable  under Art. III."  Diamond v. Charles, 476 U.S. 54, 70-71  (1986).  Contrast Washington Hosp. Ctr. Nat'l Rehabilitation  Hosp. v. Collier, 947 F.2d 1498, 1502 (D.C. Cir. 1991) (holding  that a claim for attorney's fees was sufficient to save the  breach of contract case from mootness because attorney's  fees were an element of the damages claim, not a mere  byproduct of the suit).  Hence, an interest in attorney's fees  "is, of course, insufficient to create an Article III case or  controversy where none exists on the merits of the underlying claim." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480  (1990).


9
Fourth and last, Dr. Liu contends that because he will have  to continue to deal with the INS as his green card application  is processed, his claim is "capable of repetition yet evading  review" and therefore is not moot.  See S. Pac. Terminal Co.  v. ICC, 219 U.S. 498, 515 (1911).  This argument also fails. "By 'capable of repetition' the Supreme Court now means a  'reasonable expectation that the same complaining party  would be subjected to the same action again.' " Christian  Knights of the Ku Klux Klan Invisible Empire, Inc. v.  District of Columbia, 972 F.2d 365, 370 (D.C. Cir. 1992)  (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per  curiam)).  Since he has been granted EB-1 status, it is  extremely unlikely that Dr. Liu would be subjected to the  same challenged action (i.e., a denial of a national interest  waiver) in the future.


10
In short, Dr. Liu would not be any better off if he had been  granted a national interest waiver and EB-2 status rather  than EB-1 immigrant status.  A live controversy has ceased  to exist.  We therefore affirm the judgment of the district  court dismissing for lack of jurisdiction.  In doing so, we  affirm on the ground that the complaint is moot and do not  reach the issue whether review is precluded by 8 U.S.C.  § 1252(a)(2)(B)(ii).


11
So ordered.

