dismissed EB-2 NIW Case: Business

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
.r. 
Washington, DC 20529-2090 
*Identifying drta dsleted to 
prevent ciearl:/ unw~mnted 
invasion of ;srsonal privacy 
LIN 07 188 50988 
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 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. 
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. 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. 5 103.5(a)(l)(i). 
I ( Wytdi 
I" - John F. Grissom 
1'' Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 4 1153(b)(2), as an alien of exceptional ability in business. The petitioner initially 
described herself as an "editor and researcher of enterprise culture." 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 has not established that she qualifies for 
classification as an alien of exceptional ability in business, or that an exemption from the requirement of 
a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a personal statement and two witness letters. 
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 first issue under consideration is whether the petitioner qualifies either as a member of the 
professions holding an advanced degree or as an alien of exceptional ability in business. The U.S. 
Citizenship and Immigration Service (USCIS) regulation at 8 C.F.R. 4 204.5(k)(2) provides the 
following definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. . . . 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as 
well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 
The petitioner holds an advanced degree, having earned a Master of Business Administration degree 
from Woodbury University in 1994. Holding such a degree, however, does not establish that she is a 
member of the professions. The petitioner neither claimed nor demonstrated that a bachelor's degree is 
the minimum requirement for entry into her intended occupation. (As the director has noted, the 
petitioner has only vaguely identified what that intended occupation is.) 
We now consider the petitioner's claim of exceptional ability in business. Under the USCIS regulations 
at 8 C.F.R. 5 204.5(k)(3)(ii), to show that the alien is an alien of exceptional ability in the sciences, arts, 
or business, the petition must be accompanied by at least three of the following: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Because 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, evidence submitted to 
establish exceptional ability must somehow place the alien above others in the field in order to fulfill the 
criteria. Qualifications possessed by all or most workers in a given field cannot demonstrate "a degree 
of expertise significantly above that ordinarily encountered." For example, every qualified physician 
has a college degree and a license or certification, but it defies logic to claim that every physician 
therefore shows "exceptional" traits. 
In a statement accompanying her initial submission, the petitioner stated that she seeks classification 
"based on my exceptional ability in the research and teaching of business administration." She did not 
specifically discuss the above regulations, but some of her claims relate to the following provisions: 
An oficial academic record showing that the alien has a degree, diploma, certtficate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. 5 204.5(k)(3)(ii)(A) 
The petitioner holds a Master of Business Administration degree from Woodbury University. 
Evidence in the form of letter@) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or 
she is being sought. 8 C.F.R. 5 204.5(k)(3)(ii)(B) 
The petitioner claimed the following employment experience: 
From 1984 to 1985 I was editor for Printing and Design Magazine; from 1986 to 
1987 I was editor for Better Life Monthly; from 1987-1989 I was executive editor for 
Leader Magazine; from 1989 to 1990 I was planning man[a]ger for the same 
magazine; from 1991 to 1994 I was correspondent of the same magazine; from 1994 
to 2003 I was president and editor-in-chief for Leader Magazine. From 2003 to 2006 
I was executive vice-president of OPUS (Taiwan). From 2005 to 2007 I have worked 
as Consultant for CCST [Chinese Cancer Society Taiwan.] 
The petitioner submitted no letters from employers to corroborate the above assertions. 
 The 
petitioner submitted photographs of several magazine covers, but these covers do not establish that 
the publications named above employed the petitioner. Other materials are in Chinese, without the 
English translations required by 8 C.F.R. 5 103.2(b)(3). 
In a subsequent submission, the petitioner submitted translated certifications attesting to her work as 
a public relations andlor marketing consultant for the following companies: 
Employer Dates 
Yuteng Electronic 71112005-613012007 
Far East Technology Group 
 1/1/2006-1213 112007 
Taiwan Uyemura 71112007-613012009 [scheduled term] 
The above information covers less than two years prior to the petition's June 2007 filing date. When 
she filed the petition, the petitioner did not mention her then-ongoing contracts with Yuteng 
Electronic or Far East Technology Group. Also, the petitioner does not claim to seek employment as 
a public relations consultant. Therefore, her work for these companies does not appear to represent 
experience in the occupation she seeks in the United States. 
The petitioner submitted nothing to address 8 C.F.R. $5 204.5(k)(3)(ii)(C) through (F). 
The director denied the petition on January 9, 2009, stating that the petitioner's "proposed field of 
endeavor is not entirely apparent. . . . The evidence does not establish that the petitioner possesses 
exceptional ability or '. . . a degree of expertise significantly above that ordinarily encountered in 
business. "' 
On appeal, the petitioner states that her degrees satisfy "one required item of your standard for 
adjustment of status based on exceptional ability, though I don't think the degree is more important 
than actual ability." The petitioner added: 
I have no right to demand the US immigration officer to change the policy that 
emphasizes academic degree, but I would like to suggest that the immigration officer 
. . . give more weight on the applicant's creative ability than on his academic degree, 
especially for a person from Taiwan or China mainland, where the traditional way of 
academic training is really very effective. 
8 C.F.R. 5 204.5(k)(3)(iii) states that, if the standards listed at 8 C.F.R. 5 204.5(k)(3)(ii) do not 
readily apply to the beneficiary's occupation, then the petitioner may submit comparable evidence to 
establish the beneficiary's eligibility. Here, the petitioner has not established that those standards do 
not readily apply to her occupation. She cannot simply assert that peculiarities of Chinese culture 
entitle her to propose a vague, alternative standard of eligibility. 
The regulations at 8 C.F.R. 5 204.5(k)(3)(ii) are binding on all USCIS employees in the performance 
of their duties. The six regulatory standards provide objective measurements of an alien's abilities. 
Even if there existed a provision to allow the director to consider the petitioner's "creative ability" 
instead of those requirements, the petitioner has neither explained how to measure her "creative 
ability" nor provided persuasive evidence in that regard. She has simply documented her work as a 
public relations consultant, and claimed to have worked in publishing, as an editor and in other jobs. 
The petitioner states that her work in publishing is a "hobby," aside from her "concurrent job as 
advisor of business management in several large enterprise[s]." Regarding her consultancy 
positions, she states: "If I were not with exceptional ability, it would not be possible for me to be at 
that highly-paid position for strictly-selected person[s]." We do not accept the argument that the 
very nature of the petitioner's employment is evidence of exceptional ability. 
The petitioner asserts that she is "highly-paid," which would satisfy the requirements at 8 C.F.R. 5 
204.5(k)(3)(ii)(D) which call for evidence that the alien has commanded a salary, or other 
remuneration for services, which demonstrates exceptional ability. The petitioner, however, has 
merely provided figures from her own consulting contracts. She has not provided any basis for 
comparison to show that she is "highly-paid" relative to other consultants in her specialty. 
The only new exhibits submitted on appeal are two witness letters. One letter indicates that the 
petitioner volunteers as a Chinese language teacher at a private school in Uluah, California. The other 
letter, from the owner of a Chinese bookstore in Flushing, New York, indicates that several 
conversations with the petitioner have revealed her exceptional ability. These letters do not begin to 
meet the evidentiary standards required for a finding of exceptional ability in business. 
For the reasons specified above, the petitioner has not met the regulatory requirements to qualify for 
classification as an alien of exceptional ability in business. 
The remaining 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. The regulation at 8 C.F.R. 
5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the exemption must submit Form 
ETA-750B, Statement of Qualifications of Alien, in duplicate. The record does not contain this 
required document, or the equivalent sections of successor document ETA Form 9089, and therefore 
the petitioner has not properly applied for the national interest waiver. The director, however, did 
not raise this issue. We will, therefore, review the matter on the merits rather than leave it at a 
finding that the petitioner did not properly apply for the waiver. 
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, 1Olst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now USCIS] 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 fi-om, 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 (Cornrnr. 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 seelung 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, whle 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. 
In a statement submitted with the initial filing, the petitioner stated: 
The US is the most developed country of the world. However, recently many other 
countries began to catch up. One essential merit of those countries is their particular 
enterprise culture, whlch is nourished by their traditional culture. For example, the 
workers of Far-East such as Taiwan, Korea, and Japan are extremely diligent because of 
their common inheritance of traditional Chinese culture, whlch promotes frugality and 
diligence. . . . After the Second World War the US accelerated its development by 
emphasizing the conversion of science to technology. . . . However, the well-to-do 
condition of life diminishes the diligence and frugality of American people. . . . From the 
1990s until now almost the majority of low-price commodities came from . . . Taiwan 
and Chna mainland. . . . Such competition should not be neglected if the US will keep 
it's [sic] A-1 position in the present-day world. . . . 
If I am allowed to work longer in the US, I shall establish a research and advisory 
institute to speed up the transformation of. . . private-relationship-based enterprises, in 
order to make them more suitable for the development of Us [sic] economy. I shall also 
cooperate with universities to provide consultancy for large and small enterprises to 
analyze and amend their managerial problems. 
In a request for evidence dated October 16, 2008, the director instructed the petitioner to establish that 
her consulting work is national in scope, and that she "has a past record of specific prior achievement as 
a consultant that justified projections of future benefit to the national interest." In response, the 
petitioner submitted information about the Taiwanese companies that have hired her as a consultant. 
In denying the petition, the director repeated the assertion that the petitioner's "proposed field of 
endeavor is not evident." The director found that the petitioner had not established "influence in the 
field," or that she "would serve the national interest to a substantially greater extent than the majority of 
her colleagues." The director acknowledged the petitioner's response to the request for evidence, but 
stated that the petitioner's submission "did not address the question." 
On appeal, the petitioner claims that Japan owes its postwar prosperity to its "adoption of ancient China 
experience [sic]." Even if the petitioner had proven this claim, which she has not done, it does not 
follow that Taiwanese business consultants serve the national interest more than consultants from other 
countries, much less that the petitioner, specifically, serves the national interest more than other 
Taiwanese business consultants. 
Even if the petitioner had submitted any evidence (which she has not) to support her sweeping 
generalization that people raised in Chinese culture are more diligent and frugal than those raised in 
American culture, this would not mean that the petitioner qualifies for a waiver simply because she is 
from Taiwan. Congress gave no indication that they intended for a given alien's nationality to play any 
role in granting the waiver. USCIS must consider waiver requests individually, on a case-by-case basis, 
rather than rely on generalizations or stereotypes. 
Here, the petitioner has not shown that she has any experience whatsoever training American 
businesses in Chinese cultural values, nor has she shown that such training would improve the 
performance of such businesses. Her only documented experience is as a consultant to companies 
that need no exposure to Chinese culture, because they are already based in Taiwan. The petitioner's 
waiver application is based on little more than her presumption that United States businesses will 
prosper once they retain her consulting services. Such a presumption is not, and cannot be, an 
adequate basis for permanent immigration benefits or the special additional benefit of a national 
interest waiver. 
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. $ 136 1. The petitioner has not sustained that burden. 
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 appeal is dismissed.