dismissed EB-2 NIW Case: Accounting

identifjr 
prevent 
invasion of persd privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER 
 Date:AUG 0 4 2008 
LIN 06 201 51700 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 8 11 53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
V 
q~obert P. Wiernann, Chief 
' Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Adrmnistrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1 153(b)(2), as a member of the professions holding an advanced degree. The petitioner is a certified 
public accountant (CPA) who seeks employment as a Senior Associate at KPMG LLP. 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. 
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 director did not dispute that the petitioner qualifies as a member of the professions holding the regulatory 
equivalent of 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 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897, 60900 (November 29, 199 l), states: 
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The Service [now Citizenship and Immigration Services] 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seekmg the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hlnges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien 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 alien, rather than to facilitate the entry of an alien with no demonstrable prior achevements, 
and whose benefit to the national interest would thus be entirely speculative. 
We also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offerllabor certification requirement; they are not exempt 
by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
or her field of expertise. 
Much of the petitioner's initial submission consists of copies of certificates and other documents establishing 
that the petitioner is a qualified and credentialed CPA. The petitioner also submitted a "Summary of Work 
Experience" listing numerous "Engagements Completed" in the United States, the Philippines and Indonesia, 
including such tasks as audits for the United States Census Bureau, Levi Strauss (Philippines) Inc., Motorola 
Communications Philippines, Inc., and other major clients. The "Summary of Work Experience" amounts to 
a list of claims about the petitioner's experience, rather than documentary evidence of that experience. 
An October 24, 2003 letter from 
 Chairman of the Policy Advocacy Committee of the Asian 
Bankers' Association, acknowledged the petitioner's "help in the preparation of the Report on the Status of 
the Convergence of Domestic Accounting Standards to International Financial reporting Standards 
(IFRS) Among APEC Economies" (emphasis in original). A copy of a February 20, 2004 letter to the 
petitioner from 
 President of the Association of Certified Public Accountants in Public 
Practice, indicates that the petitioner was one of five members of that association's Committee on Auditing 
Standards for 2004. The petitioner stated that, as a member of the Committee on Auditing Standards, he 
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"provide[d] technical assistance in the revision of the Philippine Standards of Auditing." The petitioner did 
not explain how this past activity translated to prospective benefit to the United States. The petitioner did not, 
for example, establish that any governing body for CPAs in the United States had expressed a similar interest 
in the petitioner's services. The petitioner simply stated that he seeks a national interest waiver, without 
explaining how he qualified for it. 
On May 23, 2007, the director issued a request for evidence, instructing the petitioner to submit documentary 
evidence to meet the guidelines set forth in Matter of New York State Dept. of Transportation. 
In response, the petitioner asserted that his work will be national in scope because, since his 2005 arrival, he 
had "rendered professional services to . . . entities whlch are domiciled in six (6) different States, as well as 
the District of Columbia." With the exception of one client in California (Solectron Corporation), all of the 
clients were in the Mid-Atlantic region, spanning from Pennsylvania to Virginia. 
To establish the impact and influence of his work, the petitioner submitted a partial copy of a paper presented 
at a 2004 conference in Chile. The paper contains a footnoted reference to a report prepared by the petitioner 
and several others for the Asian Bankers7 Association. This evidence establishes some national impact of the 
petitioner's work at that time. Because ths evidence predates the petitioner's current employment in the 
United States, however, it does not demonstrate the national scope of his present or hture work. 
The petitioner submitted a copy of a November 16, 2004 letter from 
 Human Resources 
Manager at KPMG LLP in Montvale, New Jersey. The letter was originally prepared in support of an L-1B 
nonimmigrant visa application, but its description of the petitioner's position is relevant here. - 
stated: 
As a Senior Manager, the beneficiary is responsible for directing multiple audit engagements 
and providing guidance to audit teams on the control design and process control reviews. In 
this regard, he plans and performs audits of financial statements of various clients. He is the 
"auditor-in-charge" of KPMG audit clients and is responsible for the development, planning, 
and supervision of various audit engagements, audit fieldwork, and statutory reporting. . . . In 
addition, the beneficiary is responsible for identifying and assessing risk, evaluating internal 
controls, and preparing appropriate financial statements. The beneficiary is responsible for 
ensuring audit engagements are conducted accurately, efficiently and timely adhering to 
KPMG's methodologies. The beneficiary is involved in preparing and supervising financial 
requirements for audit engagements for clients. 
indicated that the petitioner is well-versed in KPMG's proprietary audit procedures, but she did not 
explain how the petitioner stands apart from other CPAs who conduct audits for their clients. (Because the 
letter was not written in support of a national interest waiver claim, did not address issues directly 
relating to the waiver.) 
The director denied the petition on August 2, 2007, stating that the petitioner had not established that his 
intended work in the United States will have national scope, or that the petitioner's accomplishments 
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sufficiently distinguish him from others in the field. On appeal, the petitioner cites his work with publicly- 
listed companies, and states that "the financial performance and financial condition of these companies are . . 
. not only national in scope but can even be global as well." The petitioner makes similar arguments about the 
financial health of other clients, including government entities. The petitioner does not establish that he is 
personally responsible for the financial performance or financial condition of such entities (as opposed to 
gauging their performance and condition through audits). 
The petitioner asserts that, while in the Philippines, he participated in "drafting a report on the status of 
convergence of domestic accounting standards to International Financial Reporting Standards among the 
various economies under the Asia Pacific Economic Cooperation (APEC) umbrella." The record does not 
demonstrate that the petitioner has been or is likely to be involved in a similar effort in the United States, nor 
does the record show that a comparable overhaul of United States accounting methods is imminent. The 
national interest waiver is a means to secure future benefits to the United States, not a reward for a given 
alien's past achievements overseas. 
The previously submitted letter from 
 indicated that the petitioner's work would primarily 
consist of auditing, albeit at a high level. The director did not contest the intrinsic merit of such work, but it 
remains that one does not qualify for a waiver simply by fulfilling one's job duties. The petitioner has not 
established that he would serve the national interest to a substantially greater extent than would another 
qualified worker in the same position at KPMG LLP, performing audits for the same clients. 
It is possible for the work of a CPA, under some circumstances, to have national scope. The petitioner's past 
work standardizing accounting practices may so qualify. But the petitioner has not shown that his prospective 
work, in the position offered by KPMG LLP, will be national in scope. The impact of work with any 
individual client is generally contained within the client organization, and such isolated impact does not 
become national in scope simply because of the geographical distribution of the clients. Even then, the record 
indicates that the petitioner's clients are heavily concentrated in the mid-Atlantic region of the United States. 
The AAO therefore affirms the director's finding that the petitioner has not shown that his intended work is 
national in scope. 
The AAO further affirms the director's finding that the petitioner has not established that he, individually, 
will likely benefit the national interest to a substantially greater extent than would another qualified worker in 
the same position. The petitioner has, at best, established that he is an experienced CPA who is well qualified 
for the position offered. Being qualified for a given position, however high-ranlung, does not automatically 
qualify a given alien for a national interest waiver. 
As is clear fiom a plain reading of the statute, it was not the intent of Congress that every person qualified to 
engage in a profession in the United States should be exempt fiom the requirement of a job offer based on 
national interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement 
of an approved labor certification will be in the national interest of the United States. 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.