dismissed EB-2 NIW Case: Business

U.S. Ileuartment of Homeland Security 
identifying data deleted to 
prevent clearly unwarrantec? 
invasion of personal privacj 
mK: COPY 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 08 084 51017 
 JAN 0 7 2010 
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. 
 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
terry Rhew 
 V 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(2), as an alien of exceptional ability. The petitioner seeks 
to employ the beneficiary as its president. The petitioner asserts that an exemption 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 beneficiary does not qualify for classification as an alien 
of exceptional ability and that the petitioner had not established that an exemption from the requirement 
of a job offer would be in the national interest of the United States. 
On appeal, counsel submits a brief and additional exhibits. For the reasons discussed below, we uphold 
the director's ultimate finding that the petitioner has not established the beneficiary's eligibility for 
either the classification sought or the waiver of the job offer in the national interest. 
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 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. 
As stated above, the petitioner seeks classification as an alien of exceptional ability. The regulation 
at 8 C.F.R. $ 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien must meet in order 
to qualify as an alien of exceptional ability in the sciences, the arts, or business. These criteria 
follow below. 
The regulation at 8 C.F.R. $ 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered." Therefore, evidence submitted to establish 
exceptional ability must somehow place the alien above others in the field in order to fulfill the 
criteria below; qualifications possessed by every member of a given field cannot demonstrate "a 
degree of expertise significantly above that ordinarily encountered." The director concluded that the 
beneficiary meets two of the criteria; specifically the petitioner demonstrated the beneficiary's more 
than ten years of experience and remuneration consistent with exceptional ability. 8 C.F.R. 
9 204.5(k)(3)(ii)(B), (D). Thus, at issue is whether the beneficiary meets a third criterion. 
The only other criterion the petitioner claims that the beneficiary meets is the criterion set forth at 
8 C.F.R. 9 204.5(k)(3)(ii)(F) which requires: "Evidence of recognition for achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations." Counsel asserts that reference letters from the beneficiary's "peers" serve to 
meet this criterion because the regulation uses the conjunction "or" between the types of recognition 
that can serve to meet this criterion. Counsel further notes that the court in Muni v. INS, 891 F. 
Supp. 440, 441-42 (N.D. Ill. 1995), which dealt with the higher classification for aliens of 
extraordinary ability pursuant to section 203(b)(l)(A) of the Act, relied heavily on reference letters. 
In contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is not bound to follow the published decision of a United States district court in matters arising 
within the same district. See Matter of K-S-, 20 I&N Dec. 71 5 (BIA 1993). Although the reasoning 
underlying a district judge's decision will be given due consideration when it is properly before the 
AAO, the analysis does not have to be followed as a matter of law. Id, at 719.' 
While we concur with counsel that recognition from "peers" alone can serve to meet this criterion, 
we are not persuaded that the type of "recognition" contemplated by the regulation at 8 C.F.R. 
9 204.5(k)(3)(ii)(F) includes informal reference letters from the alien's immediate circle of 
colleagues and clients prepared in support of the petition. While the recognition obviously need not 
rise to the level of a lesser nationally or internationally recognized award or prize as required for 
classification as an alien of extraordinary ability pursuant to section 203(b)(l)(A) of the Act, see 
8 C.F.R. 5 204.5(h)(3)(i), the petitioner must demonstrate some type of formal recognition issued 
independently of the preparation of the petition in order to meet the criterion at 8 C.F.R. 
5 204.5(k)(3)(ii)(F). 
the beneficiary and the branding firm Proverb won "a national award of excellence for the branding 
work on [the petitioner's] identity and the company web presence." This award, however, is not in 
the record. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 
I 
 While admittedly involving a higher classification (the same classification involved in Muni, on which 
counsel relies), the Ninth Circuit recently found that vague, solicited letters from local colleagues or letters 
that do not specifically identify contributions or how those contributions have influenced the field are 
insufficient. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9' Cir. 2009). 
(Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 
1972)). Similarly, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Thus, the petitioner has not 
established that the beneficiary personally received any award or even the identity of the alleged 
award. 
In light of the above, the petitioner has not established that the beneficiary meets this third criterion. 
In response to the director's request for additional evidence, counsel asserted in the alternative that 
the reference letters constitute "comparable" evidence pursuant to 8 C.F.R. 8 204.5(k)(3)(iii). This 
regulation, however, only permits the submission of comparable evidence where the criteria set forth 
at 8 C.F.R. 
 204.5(k)(3)(ii) do not "readily apply" to the beneficiary's occupation. The petitioner 
has not explained why the remaining criteria do not "readily apply" to company executives. 
Moreover, we are not persuaded that the necessarily subjective opinions of the beneficiary's close 
circle of colleagues and clients are "comparable" to the type of objective evidence required under the 
regulation at 8 C.F.R. 5 204.5(k)(3)(ii). 
As the petitioner has not demonstrated that the beneficiary is an alien of exceptional ability, the issue 
of whether waiving the job offer requirement is in the national interest is moot. Nevertheless, we 
will address this issue in the interest of thoroughness, as did the director. 
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, 1Olst 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. 21 5, 2 17- 18 (Comm'r. 1 99812 (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 2 17- 18. 
Significantly, even if the petitioner had demonstrated that the beneficiary qualifies as an alien of 
exceptional ability, it would not resolve the question of whether the job offer should be waived in the 
national interest. By statute, "exceptional ability" is not by itself sufficient cause for a national 
interest waiver. Id. at 21 8. Thus, the benefit which the alien presents to her field of endeavor must 
greatly exceed the "achievements and significant contributions" contemplated for that classification. 
Id: see also id. at 222. 
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. Id. 
We concur with the director that the beneficiary's occupation, business executive in the railroad 
industry, involves an area of substantial intrinsic merit. The director then concluded, however, that 
the proposed benefits of the beneficiary's work would accrue primarily to the petitioner and its 
customers and, thus, would not be national in scope. Throughout the proceeding, counsel has 
asserted that the petitioner's company provides unique services to the railroad industry in a location 
through which almost all transcontinental trains pass and has clients all over the United States. 
NYSDOT, 22 I&N Dec. at 217, n.3, addresses the issue of national scope as follows: 
[Tlhe analysis we follow in "national interest" cases under section 203(b)(2)(B) of the 
Act differs from that for standard "exceptional ability" cases under section 203(b)(2)(A) 
of the Act. In the latter type of case, the local labor market is considered through the 
labor certification process and the activity performed by the alien need not have a 
national effect. For instance, pro bono legal services as a whole serve the national 
----- 
2 
On appeal, counsel states that NYSDOT is a Board of Immigration Appeals (BIA) decision that the AAO has 
chosen to follow. In fact, this decision is an AAO decision certified as a precedent pursuant to 8 C.F.R. 
§ 103.4(c). Pursuant to that regulation, NYSDOT is binding on all USCIS employees in the administration of 
the Act. 
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. 
Id. at 2 17, n.3 
The body of the decision, however, notes that the alien in that matter worked on New York's bridges 
and roads which connect the state to the national transportation system. Acknowledging that the 
maintenance of New York's transportation infrastructure serves the interest of other regions, the 
AAO concluded that the proposed benefits of the alien's work would be national in scope. Given the 
beneficiary's signzficant involvement with the national transportation system in this matter, we are 
persuaded that the proposed benefits of his work would also be national in scope. 
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. 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. 
At the outset, we acknowledge that the alien employment certification process may be unavailable to 
the beneficiary, who is the owner of the petitioning company. U.S. Citizenship and Immigration 
Services (USCIS) acknowledges that there are certain positions wherein individuals are essentially self- 
employed, and thus would have no U.S. employer to apply for an alien employment certification. 
While this fact will be given due consideration in appropriate cases, the inapplicability or unavailability 
of an alien employment certification 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 2 18, n. 5. 
The record establishes that the beneficiary is a successful entrepreneur who has acquired several 
railroad related businesses and operated them successfully. - a Canadian 
businessman in the railroad industry and a family fiiend of the beneficiary, attests to the growth of 
petitioner under the beneficiary's management. The record also contains the petitioner's compiled 
financial statements. It is the position of USCIS to grant national interest waivers on a case-by-case 
basis, rather than to establish blanket waivers for entire fields of specialization. Id. at 2 17. We are not 
persuaded that every successfbl entrepreneur who contributes to the economy and preserves or creates 
jobs warrants a waiver of the job offer in the national interest. While counsel cites an unpublished 
decision fiom 1992 issued by this office stating that improving the economy is a factor in national 
interest waiver cases, that decision is not a designated precedent and predates NYSDOT, which is a 
precedent decision. While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on 
all USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
of the Young Entrepreneur's Organization, asserts that while 
other businesses have been laying off employees, the beneficiary is creating new jobs. The existence of 
a separate classification for employment creation pursuant to section 203(b)(5) of the Act reveals that 
Congress considers an investment of at least $500,000 and the creation of at least ten jobs to merit its 
own classification. While the existence of a separate employment creation classification does not 
preclude an entrepreneur from establishing eligibility for a national interest waiver, we are not 
persuaded that every successful entrepreneur who either is unable to meet the requirements set forth at 
section 203(b)(5) of the Act or chooses not to pursue that classification presumptively qualifies for a 
national interest waiver pursuant to section 203(b)(2) of the Act. Nothing in the legislative history 
suggests that the national interest waiver was intended simply as a means for employers (or self- 
petitioning aliens) to avoid the inconvenience of the labor certification process. Id. at 223. Similarly, 
we are not persuaded that the national interest waiver was intended as a means for entrepreneurs 
claiming to be creating jobs to avoid the petition requirements of section 203(b)(5) of the Act. 
The beneficiary is the president of the petitioning company, which has four wholly owned subsidiaries 
consisting of previously operational businesses acquired by the petitioner. One of the subsidiaries, 
is the sole representative of Holden America's Grate Lock Chock system to secure 
automobiles in two-level railway cars. According to the beneficiary's references, this system has led to 
an increase of these railway cars because the svstem does less 
system, which was designed for older cars. 
asserts that Ramptech is the sole distributor based on its performance, reliability, ingenuity and 
- 
outstanding customer focus and is now performing services Holden America used to perform in 
Canada. concludes that the beneficiary's unique business philosophy allows him to fill 
specific demands that were otherwise unfulfilled. While a good product must be distributed if it is to 
have an impact, it remains that Holden America designed the Grate Lock Chock system. - 
provides no examples of the influence of the beneficiary's business philosophy such that other 
companies have been able to improve their own customer service in the railroad or any other industry. 
A second subsidiary is Railway Program Services, Inc. (RPSI), a specialized railcar retrofit entity that is 
able to provide uniquely quick turn around times based on its specialization. - 
of the Belt Railway Company of Chicago, which leases space to RPSI, explains that RPSI must 
constantly justify its use of the space to continue the lease. praises RPSI but does not 
suggest that its specialization philosophy has spread to other railcar repair facilities or served as a 
business model in any other industry. - a successful dentist and Canadian 
business leader, notes that the beneficiary has streamlined the services provided by the petitioner and its 
subsidiaries, which previously operated individually. 
 does-not explain how this model is 
unique in the business world or influential in the industry. 
Despite the director's request for evidence of the beneficiary's influence such as articles in trade 
journals, industry publications or other media recognizing the beneficiary's achievements, the 
petitioner's response included only new letters from - and and 
business invoices. In addition, the petitioner has also failed to provide evidence that the beneficiary is 
an invited speaker at business or railroad conferences nationwide or that he has published articles on his 
business model in any trade publication or other media or comparable evidence that the beneficiary's 
business is a recognized business model in the railroad industry or any other industry. 
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.