dismissed EB-2 NIW Case: Business Consulting

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PUBLIC COpy .. ' 
DATE: 
FEB 0 9 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
. Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services ' 
OFFICE: NEBRASKA SERVICE CENTER 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us ih reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Forni I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to ~econsider or reopen. , 
Thank you, 
erryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
: I 
-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. § 1153(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition on his own behalf, the petitioner was the chief marketing officer for _ 
He has since become that company's chief operating officer. 
'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. 
I . 
On appeal, the petitioner submits a brief from counsel and numerous supporting exhibits. 
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 , i ' 
in the United States. " , , ' 
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 established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations defme the term "national interest." Additionally, 
Congress did not provide a specific defmition 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 
·-Page 3 
increasing the number and proportion of visas for irpmigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). . 
Supplementary information to regulations i~plementing the Immigration Act of 1990 (lMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 297 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (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 from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter 0/ New York State Dept. a/Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show 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 United States worker having the same minimum 
quali,fications .. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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 AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By 
statute, aliens of exceptional ability are generally, subject· to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member of the professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on May 20, 2010. Several witness letters accompanied 
the petition, the most . 'of which bears the signature of . 
strategy officer at 
That letter reads, in part: 
.' 
Page 4 
I met [the petitioner] when he was a graduate student at the highly regarded Eller 
College of Management at the University of Arizona. At that time, [the petitioner] 
stood out among his peers as a natural leader and creative thinker. ... [The petitioner] 
worked as a SenJor Advisor at Strategic Growth Advisors from 2004 to earlier this 
year (2010) .... 
Over the course of his graduate and consulting career, [the petitioner] has applied his 
unique combination of education and expertise in a focused manner - to firmly grow 
small businesses, promote the ownership and success of woman and minority-owned 
businesses as well as improve the efficiency and operations of non-profit 
organizations .... 
[The petitioner's] contributions [to education] include both his development of a 
novel curriculum and mini-course at Arizona State University a's well as contributions 
to improve the efficiency of the Tucson School District. ... , 
./ 
[The petitioner's] contributions in the field of education include .... [ellipsis in 
original] 
1. The creation of anew, more effective method of teaching materials which 
increases the student's ability to use critical thinking skills to solve problems; 
and 
11. The development of a new course in statistical thinking curricula. Both 
enhance the body of literature on education and are positive contributions to 
this field. 
As discussed above, [the petitioner's] interest in the field of education is not limited 
to the classroom, but also to developing more efficient logistical solutions that 
enhance school districts['] ability to efficiently allocate resources in the students' best 
interest. 
To provide more examples of the petitioner's work, 
letters, to be discussed below. 
Ir"u,~~r< from several other witness 
(New Jersey) State University, was previously an associate dean at the University of Arizona while 
the petitioner was a student there. _ stated: ' 
[The petitioner] published and presented a significant paper entitled 
at the Quality and Productivity 
Research Conference (June 2002). His work involved promoting the design of a 
course on Statistical Thinking. His proposal was well-regarded, and in fact [the 
petitioner] was asked to teach a mini-course built on this research. Specifically, [the 
) 
Page 5 
petitioner] proposed that a systems theory approach to teaching is a more effective 
method than traditional methods for teaching the topic. Systems teaching creates a 
collaborative environment rather than an environment characterized by hierarchy .... 
As a result, [students] internalize and retain the content, because they have learned 
through experience rather than hy rote .... 
I am familiar with [the petitioner's] research on behalf of the Tucson Unified School 
District, where he co-authored "Best Practices for TUS!?: A Comparative Study of 
Nine Arizona School Districts." ... In his report, [the petitioner identified a number 
of tangible ways to make transportation more efficient and cost-effective for this 
major metropolitan school district. The district went ahead and implemented some of 
[the petitioner's] recommendations, to great success. 
In other early work, [the petitioner] committed to researching exports in Arizona to 
promote a more integrated and efficient export strategy for southern Arizona. 
Over the years, [the petitioner] has applied his systems thinking approach to business 
management to mentor small business owners particularly minority small business 
owners and women entrepreneurs .... I am not privy to the details but I know that 
. [the petitioner] has maintained a good reputation with the business community. 
(Emphasis in original.) Like many witnesses, 
claims of fact in his letter. 
cite~ no first -hand evidence to support the 
Career coach stated: 
I have known [the petitioner] since 2004, when he was involved in an important 
graduate research project at the University of Arizona's Eller College of 
Management. [The petitioner] volunteered his time in connection with this project to 
serve as a co-author of "Best Practices for TUSD: a Comparative Study of Nine 
Arizona School Districts." At the time of this report, I was the Associate Director for 
Internship Development at the University of Arizona Eller College of Management, 
and I met regularly with [the petitione~] while he conducted his research ... . 
The purpose of [the petitioner's] rese~ch project and related report was to ... look[] 
for ways· to reduce spending and increase revenue by making improvements to the 
transportation system .... His report provided a roadmap of best practices to a:ddress 
common problems within the/TUSD. . . . . 
I am pleased to report that since [the petitioner] presented his recommendations and 
report in 2004, many of the best practices have been implemented by the 
Transportation Department. 
Page 6 
The only recommendations that identified as adopted were that the district switch to 
hybrid vehicles, and sell advertising space on school buses. The record contains nothing from the 
TUSD to confirm (1) adoption of the recommendations; (2) that TUSDwouid not have considered 
these options except for the petitioner's recommendations; or (3) the accuracy of the petitioner's 
projections of cost savings . 
••••• , now state director for risk management operations in Rhode 
Island, was previously a managing director at the Commission on Accreditation of Rehabilitation 
Facilities (CARF) while the petitioner was a summer intern there as a staffing and process 
improvement analyst. stated: 
While at CARF (albeit only for a short time), [the petitioner] specialized in business 
process mapping and process improvement. ... [The petitioner's] role at CARF was 
to map out CARF's ,internal processes. ' .. and to suggest ways to improve the 
processes used by the organization. He also helped CARF to know if root cause of 
the issues being faced by CARF were due to a manpower shortage or due to 
inefficient processes. He provided a valuable internal report to me, which was used 
by me and senior management regarding the hiring of new resource specialists . 
. . . Since his work at CARF, [the petitioner] completed his MBA and did a stint at the 
International Trade Development Corporation (now known as the Innovative 
, Technologies Development Center) .... He focused on the relationships between a 
whole network of businesses in Southern Arizona, including analysis on 
technological and export capabilities within the state. 
More recently, at Strategic Growth Advisors, [the petitioner] has utilized his highly 
specialized skills in helping to transform small to midsize companies into regional 
and industry leaders, but perhaps equally impressive is his continued interest in the 
non-profit sector where often high-quality business consulting and strategic thinking 
is not available. Further, [the petitioner's] current work with minority-owned and 
women-owned businesses provides more recognition of his value to his clients and to 
broader public interests. 
The AAO notes that, by the time wrote his letter in April 2010, the petitioner had already 
left Strategic Growth Advisors and was working for a moving company. _ does not appear 
to have been aware of this change in the petitioner'~ employment. 
Tucson, Arizona, stated: 
From May 2004 t6 November 2004, [the petitioner] was a Project Manager intern at 
ITDC. During this period, he presented- to me the idea of "coopetition" for 
businesses. It ,is a novel concept for companies to Improve their operational 
Page 7 
excellence through strategic alliance, instead of engaging in competItion. For 
example, Company A might have a hardware product and company B might have a 
software product and they could Qombine them to create a complete product thereby 
achieving a faster time to market and also saving tremendously on development costs. 
I found the idea of "coo petition" intriguing and consistent with our mission at ITDC, . 
and [the petitioner] and I came up with an ITDC project for business coopetition, with 
the goal to increase technology exports from Southern Arizona .... 
Asa result of [the petitioner's] work and contribution, ITDC was able to identify 
and understand businesses in the Southern Arizona region with unique 
technologies to engage in "coopetition" and increase technology exports. 
Although the specific project was not fully implemented at ITDC due to the 
conclusion of [the petitioner's] position/internship, I was very impressed with 
[the petitioner's] exceptional ability to combine his analytical, problem-solving 
skills with his knowle~ge of business development. 
(Emphasis in original.) ,having stated that the ~'project was not fully implemented," did 
not specify the extent (if any) to which ITDC partially implemented the project or identify any 
functioning examples of "coopetition" arising from the petitioner's work. . 
Research, Niskayuna, New York, attempted to recruit the petitioner, but the petitioner declined the 
offer in order to continue his graduate studies ·at the University of Arizona. _praised the 
petitioner's work for the Tucson Unified School Board and for ITDC, and asserted that the petitioner 
"has demonstrated his ability to incorporate his analytical expertise into his method for expanding 
and increasing the efficiency of small and midsil-e companies." _also asserted that the 
petitioner has helped "small companies towards accomplishing their goal of developing into national 
and international organizations. Some of these organizations include the Tucson YMCA boards and 
Arizona Public Media" (emphasis in original). Continuing a pervasive pattern in the record, the 
record contains no first-hand evidentiary support for_ claims. . 
stated: 
[The petitioner] is a recognized expert in marketing and systems thinking, who has 
made a concerted and consistent' effort to promote small business ownership, 
minority-business ownership, and women-owned businesses over the last several 
years. He has been involved in mentoring business owners and making presentations 
of expertise. This work has been in addition to his well-regarded career as a 
professional consultant. 
Because of [the petitioner's] proven expertise in the field of Systems Thinking as 
applied to busil}ess and marketing, we at _,have partnered with him to serve 
Page 8 
as a mentor and advisor to business owners that participate in our training. In this 
way, he has been an expert capable of judging the business models and strategies of 
our members. . . . [The petitioner] is an expert at evaluating and increasing 
businesses' success based on Systems Thinking analysis. 
One of the initial witnesses is a former client of the petitioner. president and 
"a private company in the business 
US Advanced Medical Research retained [the petitioner] 
for strategic planning and marketing analysis to enhance the overall 
performance of our company. [The petitioner] ... worked closely with me and was a 
valuable resource. 
[The petitioner] conducted a detailed and comprehensive assessment of my company 
in terms of structure, people, process, technology, customer base and competition. 
He developed a growth roadmap based on this assessment which included a new 
marketing plan, marketing processes and marketing platform. Specifically, [the 
petitioner] presented a growing opportunity for my company with a comprehensive 
systems approach of growth that connects all aspects of my company into a single 
system for the purpose of supporting our lifestyle, our workstyle, and meeting the 
needs of the right demographic of customers. 
Using a Systems Thinking approach ... , [the petitioner] helped us to ask why we do 
things in a certain manner and determine the advantages and disadvantages of our 
approaches. Part of this process was visualizing company processes through the 
development of process maps which were included in the process handbook 
developed by [the petitioner] for our company . 
. . . As a result of [the petitioner's] creative and systematic approach, monthly 
production reported from our top sales person increased by a range of $30,000 to 
$80,000 per month! 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of~-A-, 2?- I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a 'greater need for the petitioner to submit 
corroborative evidence. Matter ot Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
Page 9 , 
responsible for making the final' determination regarding an alien's eligibility for the benefit 
sought. [d. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may even 
give less weight to an opinion that is not corroborated, in accord with other information or is in any 
way questionable. [d. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972»). 
Many of the witnesses made claims' of fact regarding projects in which they themselves did not 
participate, such as _ assertion that the petitioner helped to transform 
_ into a "national and international organizatIon" and claim that the Tucson 
Unified School District implemented the petitioner's recommendations. Such claims lack both 
corroboration and detail. , ' 
Several witnesses attested to the petitioner's skills as an advisor to businesses and nonprofit 
organizations. None of the witnesses indicated how the petitioner continues to use those skills at 
. Indeed, the witnesses did not even acknowledge his employment there, 
even though most of them wrote their letters about two months after the petitioner had begun 
working for the moving company. It is, therefore, not clear how the witnesses' praise of the 
petitioner ties in to his most recent work for Horizon. " 
The petitioner himself, on Form ETA 750 Part B, Statement of of Alien, described his 
current duties as chief marketing officer at in this way: "Conduct 
marketing assessments, create and execute comprehensive marketing plans, and lead the 
improvement of [the] company's marketing channels." The petitioner did not explain how this work 
furthers the interests of anyone other than his . current employer. This is a significant consideration, 
because the national, interest waiver requires prospective benefit to the United States; it is not a 
reward for past work. For this same reason, the petitioner's research work as a student carries 
negligible weight in this proceeding without evidence that he has continued to engage in such 
research, or to implement the findings therefrom. 
On June 17,2010, the director issued a request for evidence, instructing the petitioner to "submit 
documentary evidence to establish that the benefits of [the petitioner's] proposed employment with 
Horizon Moving Systems, Inc., will be national in scope." The director also requested evidence of 
"a past record of specific prior achievement that justifies projections 'of future benefit to the national 
interest." The director also instructed the petitioner not to re.,.submit previously submitted materials. 
Nevertheless, the majority of the petitioner's response consists of copies of, several previously 
submitted exhibits. 
In response to the notice, the petitioner discussed and quoted from earlier witness letters, even 
though those letters did not address his current work at Horizon. The petitioner also stated: "I 
provided the unique concept of 'coopetition' -a combination of 'cooperation' and 'competition.'" 
Page 10 
The petitioner failed to establish that he coined the term or developed the concept. The AAO notes 
that a search for the word "coopetition" using the Google search engine, http://www.google.com. 
yields over 200,000 results, including a century-old reference.
l 
Regarding his current work, the petitioner stated: 
I am currently a senior marketing officer at the largest 
~e company in Arizona, and the leading agent of 
_ is a leading(national moving company; and the work of a moving 
~onal and international by nature. Prior to my work at _ 
_ I was a management consultant for small businesses and non-profits 
and governmental entities. 
My work and accomplishments in the areas of systems thinking, business operations, 
and management consulting have had a national impact and are national in scope .... 
I· believe that my contributions have contributed positively to the U.S. economy, 
including exports and government efficiency/energy efficiency. My current work 
contributes to positive impact on the U.S. military .... 
I have recently joined . where I have used my experience 
with systems thinking, management consulting to keep the 
company going forward and growing, and maintaiiiing a positive relationship with 
key corporate and government clients, including the U.S. military. My work has been 
critical for Horizon to maintain a market share and preserve U.S. jobs. 
My current work with Horizon has a national impact in part through our business 
partnership and contracts with the U.S. Air Force and other governmental agencies. 
Horizon has a long working history with such governmental agencies, and in my 
senior role, I have been able to provide services to help maintain and enhance our 
moving and storage services for the United States Air Force and beyond. Certainly, 
by providing efficient and quality moving services for our many government 
contracts, I have been able to positively impact a national priority, namely the easy of 
[sic] transition for committed military personnel and civilians in a time of war. 
( 
The petitioner did not explain how he "provid[es] ... moving services" for government clients. His 
employer provides those services, but the petitioner's responsibilities lie in marketing, rather than in 
actually providing moving or storage services. 
Three new witness statements accompanied the petitioner's response to the request for evidence. 
in an affidavit, did not claim any personal 
'Kirke S. Pickett used the term in the advertising journal Printers' Ink, Vol. 74, No.1, January 5, 1911, p. 79. An image 
of the publication is available at http://books.google.com/books?id-FrEpAAAAYAAJ (excerpt added to record January 
25,2012). 
--' Pagel 1 
knowledge of the petitioner or his work. ••••••• knew of the petitioner as a result 
"wen-acquainted with 
stated: 
includes his and his company's work with 
while I was Wing Commander, as well as _ 
a' civilian community SUPP()rt group for_ 
I can confirm that has had a longstanding and positive 
business relationship with Davis Monthan Air Force Base, and that many members of 
the U.S. Air Force have excellent treatment and service with Horizon. As 
you may already know, is the largest moving company in Tucson 
and one of the largest agents of United Van Lines in the United States .... In addition 
to its work with also works with critical 
has weathered the worst part of the recession and. 
maintained its service to the U.S. government. As part of its plan to build back up 
and grow, the cOIpp~ny has retained the valuable services of [the petitioner] as a key 
advisor. 
As our country fights two active wars in Iraq and Afghanistan, our military is 
stretched and military personnel are asked to move often and sometimes in difficult 
circumstances. Retaining a valuable business partner with stable financial standing 
like is certainly something that is in our national interest. 
Providing for jobs in Arizona and maintaining strong and efficient business relations 
with defense contractors is also consistent with various U.S. government policies. 
[The petitioner's] work has been critical to in the past several 
months, and I know that the company seeks to retain [the petitioner's] services in 
order to maintain its position and to grow. [The petitioner] brings a broad range of 
experience which can be utilized in maintaining and enhancing 
service to the U.S. Air Force. It seems unfortunate that Horizon may lose [the 
petitioner] as a key employee just as the company has turned the corner out of the 
recession. 
above, essentially equated denial of the waiver with termination of the petitioner's 
employment at Horizon, but he did not demonstrate that Horizon has no other means of retaining the 
petitioner as an employee. 
the parent company of United Van Lines, stated: 
." 
Page 12 
Horizon has weathered the very tough 2008 and 2009 years and, through the hard 
work of his manageIl!ent team, has an active plan to maintain its 
longstanding success and remain a viable companyJor the coming years . 
. . . [D]uring his short tenure with the organization, I understand [the petitioner] has 
provided valuable leadership and analysis as well as strategic thinking about how to 
maintain Horizon's current market position despite the current economic challenges 
in the United States. 
. . . I can confirm that the services of [the petitioner], as 
largest agents, play in an important role in what is 
clearly a national business .... We need our agents in a strong financial position with 
a well-conceived business plan particularly now in the current economy. We want 
our agents to be financially stab.1e and maintain a strong workforce. 
The record indicates that Horizon has been in business since 1924, and "weathered the very tough 
2008 and 2009 years" before the petitioner began working there in February 2010. did 
not explain why this establish~d company's continued success now depends on the petitioner's 
efforts . 
•••••• stated: 
I am the independent, nonprofit membership 
organization and think tank that crucial issues facing Arizona. . . . In my 
role with the Arizona Town Hall, I am familiar with leading businessmen in Arizona, 
including whose is active 
in Arizona Town Hall and currently serves as the Board 
retained [the. petitioner] initially as a consultant and 
relying extensively on [the petitioner's] background 
and exp~rience with business openltions,. management consulting, and systems 
thinking .... [The petitioner] has highly specialized, specific past experience III 
systems thinking and analyzing an organization from top-to-bottom .... 
Right now we need to protect our private sector employers and the jobs they offer and 
tax base they provide from their profits. Someone like [the petitioner] enhances the 
stability of his employer and brings extensive expertise that has been developed over 
years. 
The three witnesses quoted above focused not on the petitioner, but on Horizon as a company. The 
witnesses offered little explanation as to why it is in the national interest that the petitioner, rather 
than a qualified United States worker, fill the chief marketing officer position at Horizon. The 
, 
Page 13 
assertion that the-petitioner is well qualified for the position does not lead to the conclusion that it is 
therefore in the national interest for him, rather than another qualified worker, to fill that position. 
There exists no blanket waiver for top officers of establiShed businesses, and the petitioner submitted 
no evidence to show that the petitioner is responsible for creating significant numbers of new jobs or 
preserving existing jobs that. would otherwise have disappeared. Witnesses asserted that the 
petitioner's qualifications justify optimistic projections for Horizon's future growth, but speculation 
of this kind is not evidence of existing impact on his field. 
The director denied the petition on October 5,2010. In the denial notice, the director acknowledged 
the intrinsic merit of the petitioner's occupation, but found that the petitioner had not established its 
national scope or "a past history of achievement with some degree of influence on the field as a 
whole." The director concluded that the petitioner "is a competent, well-trained, creative marketing 
officer who appears well qualified for the work he proposes to do," but that "not every well-trained, 
competent, petitioner qualifies for a national interest waiver." 
The petitioner, on appeal, disputes the finding that the petitioner's occupation lacks national scope. 
The "national scope" prong of the NYSDOT national interest test relates to the occupation rather than 
to anyone individual in that occupation. In this light, the AAO acknowledges that a marketing 
executive for a large corporation can have national scope, particularly where federal government 
contracts are involved. The AAO will therefore withdraw this element of the director's findings. 
There remains the third prong of the NYSDOT national interest test, specific to the petitioner . 
. On appeal, counsel asserts that the director failed to consider several of the petitioner's evidentiary 
exhibits. For example, counsel states that the director ignored affidavit "attesting 
to the petitioner's work and its relevance to u.s. military activities." That affidavit focused on 
Horizon's longstanding business relationship with a local Air Force base and its personnel. 
Whatever the merit of assertions, it does not follow from those claims that 
Horizon's staffing decisions should be exempt from the statutory labor certification requirement. To. 
demonstrate eligibility for the national interest waiver, it cannot suffice for the petitioner to show 
that he is qualified for a management position at a respected and successful company. The petitioner 
may well be Horizon's first choice for the position of chief marketing officer, but that does not show 
that it is in the national interest of the United States for Horizon to bypass the job offer requirement, 
including labor certification., 
Similarly, counsel states that discussed the petitioner's "critical role and 
contributions to Horizon." ,however, described the petitioner's work for Horizon only 
in very vague terms, for instance praising the petitioner's "valuable leadership and analysis as well 
as strategic thinking." The petitioner had not submitted any first-hand, documentary evidence to 
quantify the effect that his work has, thus far, had on Horizon's ability to retain workers and serve its 
customers. 
Counsel, on appeal, claims: "In NYSDOT, the petition f(tiled in that case because the documentation 
did not establish the exceptional ability of the beneficiary." The initial appellate submission 
\. 
Page 14 
includes a complete copy of the' NYSDOT decision, but counsel nevertheless mischaracterized that 
decision. Exceptional 'ability was not a factor in NYSDOT: 
Because, by statute, "exceptional ability" is not by itself sufficient cause for a 
national interest waiver, the benefit which the alien presents to his or her field of 
endeavor must greatly exceed the "achievements and significant contributions" 
contemplated in the regulation at 8 CF.R. § 204.5(k)(3)(ii)(F). Because the statute 
" and regulations contain no provision allowing a lower national interest threshold for 
advanced degree professionals than for aliens of exceptional ability, this standard 
must apply whether the alien seeks classification as an alien of exceptional ability, or 
as a member of the professions holding an advanced degree. ' 
[d. at 218-19. That same decision clearly indicated, that, because the beneficiary of that petition 
qualified as a member of the professions holding an advanced degree, "[t]he issue of whether the 
beneficiary is also an alien of exceptional ability is moot." [d. at 216. 
Counsel contended that the petitioner's witness letters "discuss specific ways [the petitioner] has 
helped to: 
• Grow minority and women-owned businesses; 
• Increase exports; 
• Promote 'green' technologies; 
• Grow small businesses; 
• Enhance non-profit administration; and 
• Improving educ51tion. 
Counsel does not explain how the petitioner's work at .Horizon serves any of the above goals. The 
petitioner's past work in those areas does not permanently create a legacy of entitlement for future 
employment-based immigration benefits. It is significant that, in the appellate brief, counsel relies 
on the petitioner's current work at Horizon to meet the "national scope" prong of the NYSDOT test, 
but on the petitioner's earlier work for previous employers to establish the impact of the petitioner's 
work. The petitioner cannot partition his .claim in this way, such that his intended future work 
satisfies some elements of the NYSDOT test while his very different past work satisfies the rest. 
Much of the licates earlier sub'missions, . but the petitioner submits two new witness 
statements. , previously identified as the president of 
Inc., signed a 15-page statement disputing the denial and reasserting the s Waiver aim. 
The AAO need not address claims regarding the'national scope of the petitioner's 
work, because the AAO has already ledged. that scope. The sole remaining issue in 
contention concerns the nature of the petitioner's influence and impact on his field. 
Significant portions of the new statement, attributed to are identical to passages of 
the original statement signed by In effect, the new statement does little more than 
Page 15 
repeat the original statement, punctuated with assertions that the exhibits and claims discussed 
therein refute the director's grounds for denial of the petition. Given the identically worded 
passages, it is not clear how much of this statement actually wrote. 
The new statement echoes counsel's strategy of focusing on the petitioner's past work as a 
graduate student and for organizations that no longer employ him. 
was previously _ director of trans~on. His 
letter, submitted on appeal, marks the first statement of r(?cord by a past or present _ offIcIal. 
_ asserts that "most of [the petitioner's] best practiced [sic] ideas have been implemented by 
the repeats figures and estimates from the petitioner's 
2004 report, but provides only vague information about the effects of the petitioner's 
recommendations. For instance, states that the petitioner "predicted that the [school bus] 
advertisements would generate about $120,000 for the school," but did not state whether subsequent 
events have borne out that prediction. Indeed, _ does not specifically state whether or not the 
district actually implemented the advertising plan. As another example, _states that the 
petitioner "pointed out that in the fiscal year 2002-2003, the _ spent $1,051.034 on gasoline," 
but he does not provide any figures to show a significant reduction in gasoline consumption in later 
years. does not even claim that there w~s such a reduction - he says only that the petitioner 
made recommendations to that end. 
The petitioner submits copies of quarterly payroll reports, showing thaCthe petitioner had 160 
employees in March 2010, rising to 181 employees in July 2010. A handwritten annotation states: 
"Petitioner has ,been helping to grow jobs." The record does not indicate how much of the 
company's growth was a result of the petitioner's initiatives rather than other factors. The AAO 
notes that, while the petitioner had 181 employees in July 2010, by September 2010 that figure had 
dropped to 169, a net increase of only nine employees. If the petitioner maintains that he is 
responsible for increases in employment figures, then h~ must also show how he is not responsible 
for the subsequent drop. 
Also, the fragmentary evidence provided does· not account for other factors, such as· seasonal 
employment. If, for example, a moving company routinely hires college students during their 
summer vacations, then it would be logical to expect an increase during the summer months 
followed by a drop-off as those students returned to school. The payroll documents are consistent 
with that explanation, with no countervailing evidence to rule it out in favor of the alternative 
explanation that the petitioner has grown the company. \ 
The witness statements in the record 'indicate that the petitioner's employers, clients and colleagues 
hold him in high regard, but the record contains no coherent national interest claim. The petitioner 
has essentially.argued that his past work p~esented numerous benefits to the United States, and that 
his future work with Horizon will be beneficial for almost totally different reasons. USCIS does not 
dispute that the petitioner is well qualified for his position with a successful company, but this does 
not translate into an issue of national interest. 
, .. 
Page 16 
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. 
ORDER: The appeal is dismissed.