dismissed EB-2 NIW Case: Avionics Radar

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U.S. Department of Homeland Security 
20 Mass. Ave., N W., Rrn. 3000 
Washington, DC 20529 
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PUBLIC COPY 
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Office: VERMONT SERVICE CENTER Date: 
BEC 1 8 2006 
IN RE: Petitioner: d' 
Beneficiary: 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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 further inquiry must be made to that office. 
u 
% Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office 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. 5 11 53(b)(2), as an alien of exceptional ability. The petitioner seeks employment as 
an Avionics Radar Specialist with the U.S. Army. The petitioner asserts that an exempt?on from the 
requirement of a job offer, and thus of an alien employment 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 had not established that an exemption 
fi-om the requirement of a job offer would be in the national interest of the United States. , 
On appeal, counsel asserts that the director erred in finding that the submission of an uncertified ETA 
Form 9089 reflected that' the petitioner no longer sought a national interest waiver. The director, 
however, did make a finding regarding the petitioner's eligibility for a national interest waiver. Thus, 
the director's implication that the petitioner may have abandoned this request does not constitute 
reversible error. 
Counsel fwther 'asserts that the petitioner is eligible for the national interest waiver based on counsel's 
own interpretation of the relevant statute and regulation. Counsel asserts that the regulations provide 
little guidance and are "hairsplitting" and "byzantine." Counsel notes that the regulations have not been 
amended since Congress added the advanced degree professionals to the class of aliens eligible for the 
waiver. Counsel fails to acknowledge that in 1998, after advanced degree professionals became 
eligible, this office issued a comprehensive precedent decision interpreting the national interest waiver 
provision, Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Comm. 1998). Precedent 
decisions are binding on all officers of Citizenship and Immigration Services (CIS). 8 C.F.R. 
5 103.3(c). Further, this decision has been upheld in federal court as a reasonable and predictable 
interpretation of the relevant statute. Talwar v. INS, No. 00 CIV. 1166 JSM, 2001 WL 767018 
(S.D.N.Y. July 9, 2001). The director referenced the relevant precedent decision in both the request 
for additional evidence and the final notice of denial. While counsel briefly addresses the two most 
basic elements of eligibility set forth in the precedent decision, he fails to address the third and most 
involved element. For the reasons discussed below, the petitioner has not overcome the director's 
concerns. 
Section 203(b) of the Act states in pertinent part that: 
(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 requirement of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
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On appeal, counsel asserts that the petitioner is an alien of exceptional ability. This issue is moot, 
however, because the record establishes that the petitioner holds a Master's degree in Aerospace 
Engineering fiom the Embry-Riddle Aeronautical University. The petitioner's occupation falls within 
the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the 
professions holding an advanced degree. The remaining issue'is whether the petitioner has established 
that a waiver of the job offer requirement, and thus an alien employment certification, is in the national 
interest. 
Neither the statute nor 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (~ovemberj29, 1991), states: 
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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 qualifL 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 Dep 't. of Transp., 22 I&N Dec. at 215, has set forth several factbrs 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 seeking 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. 
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It must be noted that, while the national interest waiver hinges 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 achievements, and whose benefit to the national interest would thus be 
entirely speculative. 
The petitioner proposes to work in an area of intrinsic merit, maintenance of U.S. Army radar, 
communications, navigation and flight control equipment on aircraft. Counsel asserts without 
explanation that the benefits will be national in scope. Clearly, the military as a whole benefits the 
national interest on a national level. We note, however, the following discussion: 
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[Plro bono legal services as a whole serve the national interest, but the impact of an 
individual attorney working pro bono would be so attenuated at the national level as to 
be negligible. Similarly, while education is in the national interest, the impact of a 
single schoolteacher in one elementary school would not be in the national interest for 
purposes of waiving the job offer requirement of section 203(b)(2)(B) of the Act. As 
another example, while nutrition has obvious intrinsic value, the work of one cook in 
one restaurant could not be considered sufficiently in the national interest for purposes 
of this provision of the Act. 
Matter of New York State Dep't of Transp., 22 I&N Dec. at 217, n.3. 
 Similarly, while the 
maintenance of military equipment is in the national interest, the benefits of a single soldier are too 
attenuated at the national level. Congress is capable of identifying a specific occupation, such as 
physicians in underserved areas, that warrant a waiver of the alien employment certification in the 
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national interest despite the negligible national impact of each member of the occupation. Section 
203(b)(2)(B)(ii) of the Act. Congress has not enacted a similar provision for all aliens willing to 
work in positions defined by the U.S. Army as "shortage positions." It is the position of Citizenship 
and Immigration Services (CIS) to grant national interest waivers on a case-by-case basis, rather than to 
establish blanket waivers for entire fields of specialization, such as those willing to join the U.S. 
military. Id. at 2 17. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The director concluded 
that the petitioner's claim was impermissibly based on a shortage of U.S. workers willing to perform 
the same services and qualifications that could be listed on an application for alien employment 
certification. On appeal, counsel makes no attempt to explain how the petitioner will benefit the 
national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. Rather, counsel asserts broadly that "if it's good for the U.S., an employer, and 
therefore a labor certification is not required." Counsel provides no legal authority for this 
Page 5 
proposition as a useful means of evaluating an individual petition in lieu of the specific 
considerations set forth in Matter of New York State Dep 't of Transp., 22 I&N Dec. at 2 15. 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified. to work on this project must also qualifL for a national interest waiver. At 
issue is whether this petitioner's contributions in the field are of such unusual significance that the 
petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. 
Counsel asserts that the petitioner's Master's degree is "above that ordinarily encountered in the field" 
and that, thus, the petitioner possesses exceptional ability and expertise "that can contribute to national 
security." Counsel concludes that because the petitioner is an alien of exceptional ability, the director's 
decision to deny the national interest waiver was in error. 
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 First, the regulation at 8 C.F.R. Cj 204.5(k)(3)(ii) provides that an alien of exceptional ability must meet 
at least three of the regulatory criteria. A degree is only one criterion. Moreover, section 203(b)(2)(C) 
of the Act provides that the possession of a degree, diploma, certificate or similar a~ard~from a 
college, university school or other institution of learning shall not by itself be considered sufficient 
evidence of exceptional ability. Thus, the law and the pertinent regulations explicitly contradict 
counsel's assertion that the petitioner is an alien of exceptional ability solely because he has an , 
advanced degree. Regardless, exceptional ability is a classification that normally requires an alien 
employment certification. We cannot conclude that meeting one of the regulatory criteria, or even the 
requisite three, warrants a waiver of that requirement. See generally id. at 222. 
While the petitioner has submitted letters from Army recruiters speculating as to the hture benefit of 
the petitioner's work, the record lacks any evidence of the petitioner's past accomplishments, a 
necessary element. Id. at 219. We acknowledge that the petitioner has a Master's degree. Academic 
performance, however, as measured by such criteria as grade point average, cannot alone satisfy the 
national interest threshold or assure substantial prospective national benefit. In all cases the 
petitioner must demonstrate specific prior achievements that establish the alien's ability to benefit 
the national interest. Id. at 222, n.6. The petitioner claims that he is the author of a book "published 
in 2004." He does not indicate, however, that the book is available anywhere other than the library 
of the school that accepted this "book" as his thesis. Without evidence of the impact this book has 
had, such as references to it in other media, we cannot conclude that this book represents the 
petitioner's track record of success in the field. Thus, the assertions from the Army recruiters that 
the petitioner's future work will benefit the national interest are pure speculation. 
As is clear from 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 from 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 alien employment certification will be in 
the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 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 an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.