dismissed EB-2 NIW Case: Banking

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PUBLIC COpy
identifying data deleted to
prevc::nt clearly unwarranted
LUvaslOnofpersonalprivacy
FILE:
EAC 0506251265
U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
Office: VERMONT SERVICE CENTER Date: OCT 162007
IN RE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member ofthe 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. § 1153(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 further inquiry must be made to that
office.
~~~Robert P. Wiemann, Chief
I Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Vermont Service Center , denied the employment-based immigrant visa
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now
before the AAO on a motion to reopen. The motion will be granted, the previous decision of the AAO
will be affirmed and the petition will be denied .
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality
Act (the Act), 8 U.S .C. § 1153(b)(2) , as a member of the professions holding an advanced degree .
The petitioner seeks employment as a "banking specialist." 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.
On appeal , the petitioner asserted that the director failed to understand the significance of his past
accomplishments , noted the number of Russian-speaking residents in the United States and claimed to
have doubled the "financial turnover" of his own company in three months. The AAO upheld the
director's decision, noting that the petitioner 's company, created after the date of filing, could not serve
as a basis of eligibility for this petition.
On motion, the petitioner now relies on his cultural knowledge and entry into the real estate business.
For the reasons discussed below, we reaffirm our initial decision in this matter.
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 ofjob 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 petitioner holds a Master's in Business Administration (MBA) from the Ivane Javakhishvili State
University of Tbilisi. The director did not dispute that the petitioner qualifies as a member of the
professions holding an advanced degree. The sole issue in contention is whether the petitioner has
'.
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established that a waiver of the job offer requirement, and thus a labor 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 the phrase, "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, WIst Cong., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part:
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 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 Dep't. of Transp., 22 I&N Dec. 215, 217-18 (Commr. 1998)[hereinafter
"NYSDOT"], 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. Id. at 217. Next, it must be shown that the proposed benefit will be national
in scope. Id. 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. Id. at 218.
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. Id. at 219. 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. !d.
The director determined that the petitioner has worked in an area of intrinsic merit, economics and
banking. The AAO did not withdraw that finding and we reaffirm that these fields have intrinsic
merit. As noted by the AAO, however, the petitioner has not provided any information about
Chelsea Group, Inc. Thus, the AAO could not determine whether the petitioner proposes to continue
working in the same field. On motion, the petitioner now claims to be entering the real estate field
as an agent affiliated with Century 21. While real estate has intrinsic merit, the petitioner cannot
continue to make material changes to a petition that has already been filed in an effort to make an
apparently deficient petition conform to CIS requirements. See Matter oflzummi, 22 I&N Dec. 169,
175 (Commr. 1998).
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The director then concluded that the petitioner had not established that the proposed benefits of his
work would be national in scope. On appeal, the petitioner responded that his ability to speak three
languages was not limited to a local impact because there are approximately 5,000,000 Russian­
speaking residents of the United States.
The AAO rejected the petitioner's language abilities as a valid basis for eligibility, noting the
prevalence of those who can speak languages other than English worldwide. On motion, the
petitioner asserts that he is not simply relying on his fluency in other languages, but also his
knowledge of different cultural, ethnical and social backgrounds of those arriving from Eastern
Europe.
The fact that the beneficiary happens to originate from Georgia and, thus, speaks Eastern European
languages and is familiar with Eastern European culture, is not evidence that he has made or will
make an impact on the field of economics other than to benefit his specific clients. While benefiting
individual clients has intrinsic merit, the impact is not national in scope. If CIS were to accept that
the beneficiary's multilingual ability and cultural knowledge warrants approval of the waiver, CIS
would need to approve the waiver for every alien from a non-English speaking or culturally diverse
country with a degree in a profession. The petitioner has not established that Congress intended the
national interest waiver to serve as a blanket waiver for all multilingual aliens who are familiar with
their own cultural heritage. Certainly multilingual ability and the knowledge of one's own culture
cannot convert services that are otherwise local into those considered national in scope. For
example, pro 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.
NYSDOT, 22 I&N Dec. at 217 n.3. This analysis would not change even if the pro bono attorney
were multilingual and familiar with his own heritage.
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. 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 qualify for a national interest waiver. Id. at 218.
Moreover, it cannot suffice to state that the alien possesses useful skills, or a ''unique background."
Id. at 221. Special or unusual knowledge or training does not inherently meet the national interest
threshold. The issue of whether similarly-trained workers are available in the United States is an
issue under the jurisdiction of the Department of Labor. Id.
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. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
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Initially, the petitioner submitted documentation of his academic and professional credentials,
including his Master of Business Administration degree from Tbilisi State University in the Republic
of Georgia and real estate training certificates from Shorebank Advisory Services. The petitioner
also submitted two reference letters from colleagues praising his abilities as a credit officer
specifically and his professionalism in general. The letters do not suggest that the petitioner has
influenced the banking industry as a whole.
The director issued a request for evidence on May 23, 2005, instructing the petitioner to submit
additional evidence to meet the guidelines set forth in NYSDOT, 22 I&N Dec. at 217-218. In
response, the petitioner stated that his innovations at the Bank of Georgia were appreciated by
management and that he was promoted and paid a salary four to five times higher than the national
average. The petitioner submitted evidence relating to his remuneration, training, and membership
in professional associations. As noted in our previous decision, this evidence relates to the eligibility
criteria for aliens of exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii), a classification that
normally requires an alien employment certification. Section 203(b)(2) of the Act. We cannot
conclude that meeting one criterion, or even the requisite three criteria, for that classification
warrants a waiver of the alien employment certification process in the national interest. See
Employment-Based Immigrants, 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991); NYSDOT, 22 I&N
Dec. at 217 n.3, 222.
The petitioner asserted that he had started Chelsea Group "for testing my theoretical ideas in
economics." Documents in the record show that the petitioner incorporated Chelsea Group in June
2005, six months after he filed the petition in December 2004. The type of business is identified as
"MANAGEMENT AND DESIGN."
The petitioner also relied on a job offer fro~General Contractor, with the following
duties: design of the company's expansion strategy taking into account new realities, improvement
of the company's mana erial st le and fin~urces in an increasingly competitive
business. In addition, owner o~Design, "a construction company that
does rehabilitation an renovation work in the Philadelphia area," states that the petitioner "has
worked for me as a supervisor on several projects already, and I have found his ability to facilitate
and coordinate workers and scheduling to be a great asset." _states that the petitioner's
skills have led him to contemplate an expansion of his business that he would not otherwise have
considered. Both of the above employers are building contractors, whereas the petitioner had
previously indicated on the ETA 750B that he seeks employment in "management in food industry­
banking specialist."
The petitioner stated that he is responsible for several innovations in economics, but he specified
only one: "The last and most important innovations designed by me were a new approach and
methodology for so called 'Business Games. '" He declined to provide any specifics, but asserted
that "several independent tests showed considerable improvement of outcome." As noted by the
AAO, the petitioner submitted no documentation of these "independent tests." He did, however,
submit a letter from Professor president of the Georgian Academy of Economical
Page 6
Sciences, who states that the petitioner developed a "new approach for so called 'Business Games, ",
which characterized as a "replacement of [the] traditional scheme of [a] business
team, consisting [ofJ four different kinds of managers (leader, critic, executive and ideologist), [by a]
three-member team (opponent, proponent and customer)." Professo_ asserts that the
petitioner's "extraordinary ability and talents are critical to the field, and he has opened up an
important area of business modeling."
On appeal, the petitioner stated that the director "ignored the Independent Expert OpInIOn of
Academician Prof .. Maybe the Agency is unaware [ofJ what it means to be [a]
member of [the] Georgian Academy of Sciences." The petitioner submitted background information
about the Georgian Academy of Sciences, and about the ~endent Expert opinion."
The AAO acknowledged that these materials establish _ credentials (which the
director had not questioned), but concluded that the material issue here was not Professor
standing in the field, but that of the petitioner.
The AAO further concluded that the petitioner had not independently established the importance of
his contributions or demonstrated that U.S. businesses rely on "business games" to the same extent
as Georgian companies. The AAO further concluded that letter provided only
conjecture too tenuous to form a reliable basis for a waiver. Finally, the AAO reiterated that the
petitioner's employment prospects in the United States had been limited to management positions
with construction contractors. In a footnote, the AAO questioned whether such positions require a
bachelor's degree and, thus, can be considered professional positions pursuant to section 101(a)(32)
ofthe Act and 8 C.F.R. § 204.5(k)(2).
On motion, the petitioner asserts that his company will create three to four jobs in "the nearest
future" and 30 to 50 in five years. As evidence that he will meet these goals, he notes that he is
licensed as a real estate agent and is affiliated with Century 21. He submits a 2005 Internal Revenue
Service (IRS) Form 1040, U.S. Individual Income Tax Return listing $9,026 in wages and $17,223
in income from rental real estate, royalties, partnerships, S corporations, trusts, etc., but does not
submit the Schedule E that would identify the source of this income.
The petitioner no longer relies on his achievements in the banking industry and we reaffirm our
previous findings regarding the lack of evidence of the significance of these achievements. While
the petitioner submitted a letter attesting to his influence, that letter, without additional support, is
insufficient. More specifically, Citizenship and Immigration Services (CIS) may, in its discretion,
use as advisory opinions statements submitted as expert testimony. See Matter of Caron
International, 19 I&N Dec. 791, 795 (Commr. 1988). However, CIS is ultimately responsible for
making the final determination regarding an alien's eligibility for the benefit sought. Id. The
submission of letters from experts supporting the petition is not presumptive evidence of eligibility;
CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See
id. at 795. CIS may even give less weight to an opinion that is not corroborated, in accord with other
information or is in any way questionable. Id. at 795; See also Matter ofSoffici, 22 I&N Dec. 158,
165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl, Commr.
1972».
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In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through his reputation and who have applied his work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review. The record lacks evidence as to the extent
to which others have adopted the petitioner's method of business modeling. For example, the
petitioner has not submitted published articles by the petitioner in well-circulated economics journals
or articles in the trade or general media commenting on the petitioner's methodology.
Regarding Chelsea Group, as stated in our previous decision, establishing one's own corporation
does not cause one to be eligible for the waiver. More specifically, the inapplicability or
unavailability of an alien employment certification for self-employed aliens cannot be viewed as
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the self­
employed alien will serve the national interest to a substantially greater degree than do others in the
same field. Id. at 218, n. 5. As noted by the AAO, the petitioner has not demonstrated the type of
services that Chelsea Group will provide or evidence that the petitioner has a past history of success
in offering such services. The petitioner does not address this issue on motion.
Moreover, as also noted by the AAO, the company did not exist when the petitioner filed the
petition. The petitioner filed the founding documents shortly after the director issued the request for
evidence. A petitioner must establish his eligibility at the time of filing and may not make material
changes to a petition that has already been filed in an effort to make an apparently deficient petition
conform to CIS requirements. See Matter oflzummi, 22 I&N Dec. at 175; Matter ofKatigbak, 14 I&N
Dec. 45, 49 (Regl. Commr. 1971). The petitioner also fails to rebut this issue on motion.
The petitioner's job offers in the construction industry are equally unpersuasive. The 2005 offer from
Dennis Haines does not, on its face, demonstrate eligibility for a national interest waiver. As noted by
the AAO, there is no indication that the petitioner's work would have national impact, as opposed to
simply advancing the interests of that one particular private company. The petitioner also fails to rebut
this conclusion on motion. Thus, we reaffirm our conclusion that the petitioner cannot show that he
merits a waiver of the job offer requirement by showing that he has a job offer.
Regarding the petitioner's current claim that he will create jobs through a real estate firm, we note
that a separate classification exists for employment-creation aliens and requires an investment of at
least $500,000 and the creation of 10 jobs within two years. Section 203(b)(5) of the Act; 8 U.S.c.
§ 1153(b)(5). Petitions filed under that classification must either establish that ten jobs have already
been created or submit a comprehensive business plan. 8 C.F.R. § 204.6(j)(4). The petitioner is not
seeking classification under that provision. Nevertheless, given the rigorous statutory and regulatory
requirements that exist for employment-creation aliens, we cannot conclude that the petitioner's bare
assumption that he will create jobs, supported by no evidence beyond the petitioner's license to
A98 691 349
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practice real estate and affiliation with Century 21, warrants a waiver of the alien employment
certification in the national interest.
Finally, as with the petitioner's response to the director's request for additional evidence and appeal,
the petitioner is once again altering his basis for eligibility. We emphasize again that the petitioner
may not make material changes to a petition that has already been filed in an effort to make an
apparently deficient petition conform to CIS requirements. See Matter oflzummi , 22 I&N Dec. at 175 .
The petitioner did not initially claim a past history of success in the real estate industry and has not
demonstrated such a history on motion . Rather, he appears to be entering a new field in which he
has no established track record. Such a claim cannot form the basis for a waiver of the alien
employment certification requirement. See generally NYSDOT, 22 I&N Dec. at 219, n. 6.
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 labor 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. § 1361. The petitioner has not sustained that burden. Accordingly , the previous decision of
the AAO will be affirmed, and the petition will be denied.
This decision 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 AAO's decision of September 11,2006 is affirmed. The petition is denied.