dismissed EB-2 NIW Case: Business

P C COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
8( 
-. 
LIN 07 005 50447 
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. f~ 1 1 53(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. 
V 
PRobert P. Wiemann, Chief 
Administrative Appeals Office 
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 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 1153(b)(2), as an alien of exceptional ability in business. The petitioner seeks employment as a 
financial analyst. 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 he qualifies for classification either as an alien of exceptional ability in business or as a member 
of the professions holding an advanced degree. The director also found 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. 
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 concerns the petitioner's eligibility for classification under section 
203(b)(2) of the Act. 8 C.F.R. 8 204.5(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. A United States baccalaureate degree or a 
foreign equivalent degree followed by at least five years of progressive experience in the 
specialty shall be considered the equivalent of a master's degree. If a doctoral degree is 
customarily required by the specialty, the alien must have a United States doctorate or a 
foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business. 
Page 3 
Profession means one of the occupations listed in section IOl(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. 
In a cover letter accompanying the initial filing, counsel did not claim that the petitioner is a member of the 
professions holding an advanced degree. Counsel stated only that the petitioner "holds a Bachelor of Science 
degree in Accountancy." Counsel did not claim that the petitioner holds an advanced degree or its equivalent. 
Counsel asserted that the petitioner "is an individual with exceptional ability in the field of business with 
financial expertise." 8 C.F.R. 5 204.5(k)(3)(ii) states that, 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. 
Counsel did not, in the initial submission, discuss the above eligibility criteria or explain how the petitioner 
met them. The only documentary evidence included with the petitioner's initial submission consisted of 
copies of the petitioner's birth certificate and the academic transcript relating to his bachelor's degree. 
The director issued a notice of intent to deny on December 7, 2006, stating that the petitioner's initial 
submission contained none of the required evidence. In response, counsel stated: 
[The petitioner] holds a Bachelor of Science degree in Accounting from the University of 
Santo Tomas in Manila, Philippines. . . . 
Furthermore, he is presently employed by Washington Gas in Washington, D.C. as a Senior 
Specialist in the Accounting Department. . . . 
Page 4 
Given [the petitioner's] job experience and educational background, he clearly qualifies as an 
individual with exceptional ability in the field of Business. . . . 
The position currently held by [the petitioner] as Washington Gas requires an individual 
holding at least a Bachelor's Degree. 
Based on [the petitioner's] classification, it is requested that he be classified as an individual 
with exceptional ability in the field of Business. To be classified as an individual who has 
exceptional ability in the field of Business under INA $ 203(b)(2) the alien must meet the 
following qualifications: 
Individual with Exceptional Ability in the Field of Business: 
1. The alien has a degree relating to the area of exceptional ability; 
2. The alien has commanded a salary or remuneration demonstrating exceptional 
ability; and 
3. The field in which the beneficiary is employed is an area of substantial merit. 
Items 1 and 2 in the above list correspond, respectively, to 8 C.F.R. $5 204.5(k)(3)(ii)(A) and (D). Item 3, 
however, is not a criterion of exceptional ability; it relates to the alien's field rather than to the specific merits 
or qualifications of an individual worker in that field. Counsel has referred to a third regulatory criterion of 
exceptional ability, 8 C.F.R. $ 204.5(k)(3)(ii)(B), by asserting that the petitioner's "job experience" is a 
qualifying factor. We shall examine the three claimed criteria here. 
We note that the regulation at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. Therefore, evidence submitted to 
establish exceptional ability must somehow place the alien significantly above others in the field in order to fulfill 
the criteria below. 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. This is one reason why a general assertion about a given field - such as counsel's claim of 
"substantial merit" - cannot qualify a particular alien as "exceptional." Such a claim embodies a fundamental 
contradiction, asserting in effect that every financial analyst possesses a degree of expertise significantly above 
that ordinarily encountered among financial analysts. 
An ofJicial academic record showing that the alien has a degree, diploma, certzjicate, or 
similar awardfiom a college, university, school, or other institution of learning relating to 
the area of exceptional ability. 
The petitioner has documented his bachelor's degree in accounting. Counsel, however, has taken pains to 
assert that "a bachelor's degree is a prerequisite" for employment as a financial analyst. Counsel cites the 
2006-2007 edition of the Occupational Outlook Handbook (OOH) published by the Bureau of Labor Statistics 
at the Department of Labor (DOL). The OOH indicated that "[a] college education is required for financial 
analysts." 
The above information indicates that the petitioner's bachelor's degree in accounting does not place him 
"significantly above" other financial analysts. Rather, his bachelor's degree represents the bare minimum for 
entry-level employment as a financial analyst. The petitioner's education, therefore, does not mark him as 
"exceptional" as the regulations contemplate that term. 
Evidence in the form of letter(s) @om 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. 
The petitioner must document his work experience with letters from his past employers; he cannot simply 
claim it on a resume as is the case here. Even then, the petitioner's claimed employment experience, on its 
face, falls short of the required ten years of experience. The petitioner claims to have held several jobs in 
finance, mostly as an accountant but never as a financial analyst, and therefore he has no experience in the 
occupation of financial analyst. 
Furthermore, the petitioner did not receive his bachelor's degree until May 1998, eight years before he filed 
the petition in September 2006. If a financial analyst must have a bachelor's degree, and the beneficiary 
received his bachelor's degree only years before he filed the petition, then it is impossible for him to have 
accumulated at least ten years of experience in the occupation of financial analyst as of the filing date. 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. 
This is the third criterion that counsel cited as evidence of the petitioner's exceptional ability. The petitioner, 
however, submitted no evidence relating to this criterion; the petitioner did not even state the amount of his 
own salary, much less establish that his salary is exceptionally high in relation to others in the occupation. 
The director denied the petitiowon February 27,2007, stating: "The record does not contain any evidence that 
the alien has at least five years of progressive post-baccalaureate experience as a financial analyst . . . [or] any 
evidence to establish that the alien has exceptional ability as a financial analyst." On appeal, the petitioner 
submits a brief from counsel, which essentially repeats counsel's earlier assertions in response to the notice of 
intent to deny, such as the claim that the "substantial merit" of the petitioner's occupation is proof of 
exceptional ability. Having already addressed and rebutted these arguments above, the AAO will not repeat 
the discussion here. 
Counsel argues, in an appellate brief, that financial analysis qualifies as a "profession." The AAO does not 
dispute this assertion or the evidence adduced to support it, but it cannot suffice simply to show that the 
petitioner is a member of the professions. To qualify for classification under section 203(b)(2) of the Act, the 
petitioner must be a member of the professions holding an advanced degree or its defined equivalent, i.e., five 
Page 6 
years of progressive post-baccalaureate experience. The petitioner has not shown, and counsel does not 
claim, that the petitioner has accumulated at least five years of progressive post-baccalaureate experience. 
The AAO affirms the director's finding that the petitioner has failed to establish that he is eligible for 
classification under section 203(b)(2) of the Act. 
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. Although the petitioner has not established 
eligibility for the underlying visa classification, the director also addressed the separate question of the 
petitioner's eligibility for the national interest waiver, and the AAO shall do likewise. 
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, 
10 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 Citizenship and Immigration Services (CIS)] 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 Dept. of Transportation, 22 I&N Dec. 2 15 (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 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. 
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's initial filing indicated that the petitioner sought the waiver, but contained no evidence or 
discussion to demonstrate that the petitioner qualifies for the waiver. Therefore, in the December 7, 2006 
notice of intent to deny, the director quoted the relevant guidelines from Matter of New York State Dept. of 
Transportation. The petitioner's response to this notice focused on his claim of exceptional ability in 
business, and did not address the national interest waiver application. 
In denying the petition on February 27, 2007, the director again cited Matter of New York State Dept. of 
Transportation and found that the petitioner failed to submit the required evidence to establish eligibility for 
the national interest waiver. 
On appeal, counsel stated: "The standard set forth in Matter of New York State Department of Transportation 
regarding national in scope [is] too vague to be meaningful. Accordingly, it should be disregarded and 
inasmuch as the Service has stated that the beneficiary's occupation, namely, financial analyst, has substantial 
intrinsic merit, [there exists] sufficient justification for approval of the petition." 
The "national scope" clause is integral to binding case law. Counsel cannot arbitrarily exempt his client from 
this requirement simply by unilaterally deeming it to be "too vague to be meaningful." The burden of proof is 
on the petitioner and neither the petitioner nor counsel can relieve the petitioner of that burden simply by 
declaring it to be too difficult to meet. 
Also, intrinsic merit and national scope are necessary, but not sufficient, to establish eligibility for the waiver 
under Matter of New York State Dept. of Transportation. There remains the crucial third prong of the national 
interest test, in which the petitioner must show that he would serve the national interest to a substantially 
greater extent than others in his field of endeavor. Counsel has argued, in effect, that if the field of financial 
analysis possesses substantial intrinsic merit, then that fact alone should qualify the petitioner for the waiver. 
The AAO emphatically rejects this argument as being contrary both to case law and to the intent of Congress 
as plainly expressed in the statute. 
Finally, the director did not stipulate the intrinsic merit of financial analysis. In fact, the director stated: "No 
evidence was submitted to 'establish that financial analysis is an area of substantial intrinsic merit." 
Therefore, counsel's already deeply flawed argument proceeds from a false premise. 
Counsel states: 
The Department of Labor stated that there is a shortage of financial analysts: "Financial 
Analysts are in demand. Overall employment of financial analysts and personal financial 
advisors is expected to increase faster than average for all occupations through 2014, 
resulting from increased investment by businesses and individuals. Employment of financial 
analysts is expected to grow about as fast as the average for all occupations. As the number 
of mutual funds and the amount of assets invested in the funds increase, mutual fund 
companies will need increased numbers of financial analysts to recommend which financial 
products the funds should buy or sell." 
. . . If the Department of Labor has said that we need financial analysts, then that is 
tantamount to a finding that there are not sufficient numbers of Americans available and 
qualified to perform the job made available to fill the employment offer opportunity, it is in 
the national interest. 
Since the DOL has primary authority on the subject, Homeland Security's USCIS should 
defer to the DOL and approve the petition. 
The passage quoted above is problematic for several reasons. First, the AAO will address the quotation 
attributed to the DOL. Most of the quoted passage originates from the OOH and appears in the printout 
submitted previously. Although counsel presents the statement as a single quotation, the various quoted 
passages are in fact spaced over several pages in the original document. The AAO is unable to find the first 
"quoted" sentence, "Financial Analysts are in demand," in the submitted printout, and counsel has not 
identified any other documentary source for the quotation. Vaguely attributing the quotation to the DOL 
cannot suffice. 
With regard to the quoted sentence "Overall employment of financial analysts and personal financial advisors 
is expected to increase faster than average for all occupations through 2014," the passage refers to the 
combined employment prospects of financial analysts and personal financial advisors, which are two related 
but separate and distinct occupations. The OOH printout clarifies that the projected growth pertains to 
personal financial advisors, not financial analysts. Indeed, counsel himself quoted the sentence: 
"Employment of financial analysts is expected to grow about as fast as the average for all occupations." If 
"as fast as average" growth were sufficient to qualify aliens for blanket waivers, then the job offerllabor 
certification requirement would apply only to slow-growing or shrinking occupations, and counsel offers no 
support in the statute, regulations or case law for this interpretation. 
More fundamentally, rapid job growth and demand for workers in a given occupation do not justify waiving 
the job offerllabor certification requirement for aliens in that occupation. Even if the quoted passage 
represented official, binding DOL policy, it would not follow that financial analysts, as a class, are 
presumptively entitled to a blanket waiver of the job offerllabor certification requirement. The labor 
certification process exists to address worker shortages. See Matter of New York State Dept. of 
Transportation at 2 18. If, as counsel alleges, DOL acknowledges a shortage in the petitioner's field, this fact 
would seem to improve the chances that DOL would approve an application for labor certification on the 
petitioner's behalf. Counsel cites no statute, regulation, case law or judicial finding that a labor shortage in a 
given occupation automatically supersedes or nullifies the labor certification process for that occupation. 
Rather, the existing statutes and regulations show that shortage-based exemptions or modifications to the 
labor certification process are individually implemented on a specific basis, rather than based on any general 
proposition that a worker shortage voids the process. 
Section 203(b)(2)(B)(ii) of the Act created a blanket waiver for certain physicians. This statutory provision 
proves two important points. First, it demonstrates Congress' ability and willingness to create blanket 
waivers. Thus far, Congress has not done so for financial analysts. Second, the existence of this specific 
blanket waiver argues against the existence of implied blanket waivers; otherwise, section 203(b)(2)(B)(ii) of 
the Act would arguably be superfluous. A statute should be construed under the assumption that Congress 
intended it to have purpose and meaningful effect. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 
U.S. 237,249 (1985); Sutton v. United States, 819 F.2d. 1289, 1295 (5th Cir. 1987). 
With regard to the Department of Labor's handling of occupation-wide labor shortages, 20 C.F.R. 8 656.10 
reads, in full: 
The Director, United States Employment Service (Director), has determined that there are not 
sufficient United States workers who are able, willing, qualified, and available for the 
occupations listed below on Schedule A and that the wages and working conditions of United 
States workers similarly employed will not be adversely affected by the employment of aliens 
in Schedule A occupations. An alien seeking a labor certification for an occupation listed on 
Schedule A may apply for that labor certification pursuant to tj 656.22. 
An occupation's listing on Schedule A modifies, but does not waive, the labor certification process for aliens 
in that occupation. Furthermore, the list of Schedule A occupations at 20 C.F.R. fj 656.22 does not include 
financial analysts. 
Even setting aside the dubious provenance of the "quoted" passage "Financial Analysts are in demand," the 
existing law unequivocally refutes counsel's claim that a DOL reference to "demand" for financial analysts 
effectively exempts financial analysts from labor certification. 
Counsel argues that Matter of New York State Dept. of Transportation "is the functional equivalent of a 
regulation" that "was not promulgated in accordance with the Administrative Procedure Act . . . and it should 
not be applied, at least in this case." As a published precedent decision, Matter of New York State Dept. of 
Transportation binding on all CIS employees in the administration of the Act, pursuant to 8 C.F.R. 
5 103.3(c). Any failure by the director to follow Matter of New York State Dept. of Transportation would 
violate that regulatory requirement. Counsel expresses the opinion that Matter of New York State Dept. of 
Transportation is bad case law, but counsel does not identify any judicial decision overriding Matter of New 
York State Dept. of Transportation or any subsequent precedent decision that supersedes it. 
Counsel states, without elaboration: "Managers in the professional class are exempt from the labor 
certification requirement." Without a statutory or regulatory citation, it is difficult to discern exactly what 
counsel means by this assertion. The phrase "managers in the professional class" does not appear anywhere 
in the Act or its implementing regulations. The AAO notes the existence of a separate immigrant 
classification at section 203(b)(l)(C) of the Act, pertaining to certain multinational executives and managers, 
which does not require labor certification. (Aliens cannot self-petition under section 203(b)(l)(C) of the Act.) 
In the present proceeding, however, the petitioner has sought classification as an alien of exceptional ability in 
business under section 203(b)(2) of the Act. Neither that section of law, nor the related regulations at 
8 C.F.R. $ 204.5(k), indicates that "[mlanagers in the professional class are exempt from the labor 
certification requirement." Furthermore, counsel has not demonstrated that financial analysts are "[mlanagers 
in the professional class." 
At various points in this proceeding, including on appeal, counsel has stated that the petitioner's "services are 
sought by an employer in the U.S." This phrase, as used in section 203(b)(2)(A), denotes the job offer 
requirement. It is through the labor certification process that the prospective employer demonstrates that the 
alien's services are sought. 
In a subsequent brief, counsel states: 
Position of AAO Regarding Financial Analysts 
The Administrative Appeals Office has repeatedly and consistently . . . overturn[ed] denials 
by the Service Center directors of petitions by financial analysts who have petitioned 
pursuant to $203(b)(2) of the Act. 
On January 10, 2000, the Administrative Appeals Office (AAO) overturned a decision by the 
director of the Vermont Service Center to deny a national interest waiver to a financial 
analyst. . . . 
The A00 [sic] provided this reasoning in overturning the director's denial: 
The testimony from expert witnesses from the financial community sufficiently 
demonstrated that the applicant's work "had an impact which substantially exceeds 
what could normally be expected of a similarly trained and experienced professional 
in her field." 
We note counsel's reliance on the AAO's purported "position" regarding financial analysts, which derives 
from a single, unpublished decision, in contrast to counsel's untenable assertion that the director should have 
ignored binding case law established by the AAO through Matter of New York State Dept. of Transportation. 
The cited decision does not constitute an official AAO "position" relating to financial analysts, and it does not 
compel the approval of all petitions and waiver requests from financial analysts. While 8 C.F.R. $ 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. Furthermore, there is no evidence that the facts in the instant 
petition closely match those in the cited decision. 
 The AAO, in the cited decision, referred to the 
international reputation and documented impact of one particular financial analyst, and in no wise stated, 
implied, or insinuated that simply being a financial analyst should be enough to establish eligibility for the 
national interest waiver. To arrive at such a conclusion would require not only a gross misreading of the cited 
AAO decision, but also utter disregard of much of the reasoning in that decision. 
At most, the cited AAO decision shows that the AAO has acknowledged the intrinsic merit of financial 
analysis, as well as the national scope that a financial analyst can attain when employed under certain 
circumstances. The petitioner has not shown that such circumstances apply in the present proceeding; the 
petitioner has offered only the unsubstantiated claim that he is an accountant who desires to work as a 
financial analyst. 
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 appeal will be dismissed for the above stated reasons, with each considered as an independent and alternative 
basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. The petitioner has not sustained that 
burden. 
This denial is without prejudice to the filing of a new petition, or to the outcome of any existing petition already 
filed, by a United States employer under a more appropriate classification, accompanied by a labor certification 
issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.