dismissed EB-2 NIW Case: Business Development

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U.S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: ,1\\1" 1 F irl"' 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to * 
ed your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office 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. 9 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a business development manager for Microsoft, 1nc.' 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. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in the 
national interest, waive the requirements of subparagraph.(A) that an alien's services in 
the sciences, arts, professions, or business be sought by an employer in the United 
States. 
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 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, 
101 st Cong., 1st Sess., 1 1 (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 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 
' On the Form 1-140 petition, the petitioner listed his specific title as "Director of International Finance Development" at 
Microsoft. There is no documentation from Microsoft to confirm this title. 
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"prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The 
burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be 
in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 2 1 5 (Comm. 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 submits background documentation to establish the intrinsic merit and national scope of the 
broadband industry (which allows for the rapid transmission of high volumes of data). At issue is whether the 
petitioner's individual contribution to this industry rises to a level that merits a special waiver of the job offer 
requirement that, by law, normally applies to advanced degree professionals in the petitioner's field. We note that 
the law makes no exceptions to this requirement based solely or primarily on the prestige of a given employer. 
Counsel states that the petitioner possesses "extraordinary ability in the area of financial analysis, with a 
particular expertise in . . . digital content distribution in the broadband industry." The petitioner holds two 
degrees: a law degree and a master's in business administration. 
On his resume, the petitioner describes his recent work at Microsoft: 
Drive the launch and development of Windows home server product line. Sign key go-to- 
market partners for eHome division; develop and negotiate strategic relationships for 
eHome's launch. Responsible for success of eHome platform. Develop and cultivate 
relationships as well as collection and communication of plans between the MS and the 
eHome partner. Work with leading Consumer Electronic Manufacturers, PC OEMs, and 
service providers to drive market development efforts by identifying business and partnership 
opportunities for eHome and related DMD technologies. Drive business discussions. 
Negotiate terms with potential partners, from simple work-for-hire agreements to complex 
licenses, alliances, and acquisitions. Deals include licensing of eHome platform, technology 
licensing for walled garden service development, co-development of platform technologies, 
sales & marketing partnerships and potential platform investments. 
The above description does not mention broadband digital content distribution. 
The petitioner submits letters from several witnesses, most of whom know the petitioner from his previous 
employment at Enron Broadband Services (EBS). The original witnesses do' not include any Microsoft 
officials. now a senior vice president at Plains Resources, Inc., was previously a vice 
president and managing director at EBS. Mr. Bay states: 
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[The petitioner] was a key member of the management team developing the strategy and 
implementation of EBS' content delivery business in the broadband industry. 
The business model that [the petitioner] participated in developing was indeed complex: in 
order to improve the functionality of the Internet, EBS aimed to provide high quality, end-to- 
end delivery of broadband content by delivering movies to consumers' television sets via 
digital subscriber line (DSL) technology that sends high-speed data over phone lines, in a 
similar way to pay-per-view services on cable channels. 
[The petitioner] has developed a unique combination of skills in the broadband industry, 
including a peerless understanding of complex technical challenges. I submit that his 
capacity for looking at a traditional problem and producing an original and viable 
solution makes him an extraordinary asset who has a demonstrated record of success in 
transforming the way in which consumers access content in their homes. . . . 
[The petitioner] has a demonstrated record as one who was directly responsible for the 
innovations in, and development of, digital content distribution systems in the 
broadband industry. His skills, knowledge, and creativity are clearly measurable and 
establish him as one of the foremost experts in the world. 
(Emphasis in original.)- vice president of Global Markets Finance and Structuring at Enron 
Corporation, states: 
We began a working relationship when [the petitioner] was employed in the International 
Division at Enron Corporation. . . . He was tasked with studying the feasibility and designing 
the optimal implementation of various large-scale and complex transactions in the energy 
sector, which continue to be of critical importance to United States industry at large. . . . 
[The petitioner] was instrumental in evaluating international investments and acquisitions in 
the energy sector, and for performing extensive economic and financial modeling as part of 
the valuation of foreign energy assets. . . . 
Finally, he was responsible for several significant efforts to evaluate potential opportunities to 
use insurance products to reduce project risk and reduce costs of financing, projects which 
required an expert ability to understand business critical issues in new markets and to design 
innovative, unique solutions to achieve objectives and overcome potential pitfalls therein. 
vice president of Business Development for Bigband Networks, Inc., formerly held the same 
title at nCUBE Corporation when he worked on a project with the petitioner. He states: 
EBS assigned [the petitioner] a highly complex and truly groundbreaking challenge: to 
coordinate and launch Video on Demand trial service in four cities across the United States. 
nCube was engaged in the project to provide its hardware and software to facilitate 
development and integration. 
Again, this was a unique and pioneering project in the broadband industry - no company had 
successfully implemented such a radical, technologically complex service over a Digital 
L- 
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Subscriber Line (DSL) connection. [The petitioner] approached his responsibilities with 
consummate skill. . . . 
EBS designed and implemented this innovative service in only six months - an extraordinary 
accomplishment by any standard. 
United States Senator offers a letter in support of the petition, but she does not appear to 
claim any personal familiarity with the petitioner or his work. Rather, she prefaces her assertions with 
statements such as "It is my understanding. . . ." l en essentially repeats points from the other 
letters, adding, with reference to the petitioner's present work for Microsoft, "the largest operating systems 
technology company in the world has put its trust in [the petitioner] to lead one of their premier home service 
products into the 21" Century." She adds: "I understand that [the petitioner] has been identified by leading 
business figures in the world as one who possesses the highest level of competence in his field of 
nationalfinternational financial analysis expertise." Sen. Cantwell does not identify the "leading business 
figures." 
The director instructed the petitioner to submit additional evidence to meet the guidelines set forth in Matter 
of New York State Dept. of Transportation. The director requested documentary evidence to support some of 
the claims made by the witnesses. For example, the director re uested "an attestation from an officer of the 
bankruptcy court" relating to the petitioner's involvement with bnances (Enron's bankruptcy was a 
major news story early in the decade), and "copies of published material from trade magazines" relating to the 
petitioner's claimed importance to the implementation of broadband technology. In response, counsel states: 
Clearly, [the petitioner] has had a huge impact in his field. First, the adjudicator must 
understand that [the petitioner's] inestimable contribution to the delivery of digital content 
distribution in the broadband industry is NOT with the technology. Technology magazines 
. . . do not write about the business and operation executer who made it possible to bring this 
technology to market. 
The assertion that technolo y magazines do not cover business figures is reasonable enough, but counsel then 
goes on to observe thahand many of its officials, garnered heavy press coverage as business leaders 
before that company's financial crisis became apparent. Counsel specifically mentions Fortune magazine. 
Counsel is, therefore, clearly aware that business publications (as opposed to technology publications) took an 
interest inactivities; but there is no indication at all these business publications took any notice at all 
of the petitioner's work. Counsel asserts that the petitioner's work with EBS' video on demand trial "was 
being closely watched by experts in the field," but offers no objective documentary support for this assertion, 
despite the director's earlier notice specifically requiring documentary support for claims of this nature. 
The petitioner submits new witness lettersstates: 
I have worked at Microsoft since July 1989. . . . Until October 2003, I was General Manager 
of the Windows eHome Division [of] the Microsoft Corporation. In October 2003, I was 
appointed to oversee global marketing for Original Equipment Manufacturers (EOM) [sic], 
including the largest multinational electronics developers: Hewlett-Packard, Sony, Toshiba, 
Samsung, and NEC. . . . 
I led Microsoft's effort to recruit [the petitioner] while I was General Manager of the 
Windows eHome Division. I recognized that [the petitioner's] original work implementing 
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ÿ road band Services (EBS) Video on Demand trial in late 2000 gave him a unique set 
of skills and knowledge that was key to bring to Microsoft's effort to osition Windows as 
the best platform to deliver digital entertainment to every home. Pas it became public 
knowledge, was not positioned to financially sustain that effort, but we knew that Microsoft 
could give [the petitioner] the proving ground to bring his work to fruition. He proved us 
right. 
Almost immediately after joining the company, he led the negotiations between Microsoft 
and Movielink to devise a model solution for the secure delivery of movies to PC users in a 
new way. Movielink represents a joint venture between [five major film studios]. This 
transaction between Microsoft and Movielink represented a significant milestone for both 
companies. . . . 
[The petitioner's] groundbreaking work on content delivery via broadband channels prior to 
joining Microsoft, and the knowledge he developed, was essential to successfully complete 
this complex negotiation between Microsoft and Movielink. As a result of the agreement, 
Movielink built a customized version of traditional online movie rental services. . . . 
This major development in content delivery directly to consumer homes is another sign of the 
gradual transformation of the traditional media industry into a modern on-demand media 
industry that puts the consumer in control. [The petitioner] continues to provide the 
invaluable service of removing the obstacles to a successful source of revenue for film 
studios in a way that both protects the industry from loss of their valuable intellectual 
property, and enables the industry to adapt to, and pursue the vast on-demand home 
entertainment consumer market. 
ice president of business development for Movielink, states: 
Movielink is one of a kind. It is the first partnership between the country's leading film 
studios dedicated to delivering movies over broadband internet connections to end users' 
PCs. One of the challenges of our business was to find a way to deliver our services to end 
users without forcing them to sit in front of their PC with a keyboard and a mouse. As a 
result of [the petitioner's] leadership driving the commercial relationship between 
Microsoft's Windows Division and Movielink, now any broadband subscriber nationwide 
who buys a PC running Windows XP Media Center Edition 2004 is able to have full access to 
Movielink's service using their remote control from the comfort of their couch and browse, 
preview, order and watch movies from the comfort of their couches displayed to either a TV 
screen or PC monitor. This completely changes the experience and represents a breakthrough 
that revolutionizes the way people can experience and consume entertainment. . . . 
Prior to joining Microsoft, [the petitioner] implemented some of the first broadband content 
delivery models in the United States. These models, while cut short due to Enron's demise 
and the bursting of the internet bubble, have nonetheless greatly contributed to the current 
growth of broadband content on-demand consumers, which is expected to be an important 
driver in the film industry's growth in years to come. . . . 
His contribution to the integration of Movielink's service and Windows has, and will 
continue to, enable new ground to be broken in terms of offering end-users (consumers) a 
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vastly more diverse range of options in customizing the viewing of entertainment and media 
products. 
enior director of National Core Video Marketing at Comcast Corporation, states: 
The current convergence of the PC and Consumer electronics industries as well as the wide 
adoption of high speed internet creates both a new set of challenges and opportunities that 
makes this an incredibly exciting time in our industry. [The petitioner], who currently is 
responsible for the business development activities of Microsoft's Windows eHome Division, 
is at the forefront of the changes that are enabling completely new scenarios for end users to 
receive and consume entertainment. 
In this respect, [the petitioner] has been responsible for driving the business relationships 
between the Windows operating system and the major cable companies in the United States. 
Specifically, leveraging his expertise in implementing solutions for the delivery of premium 
digital content and movies securely over broadband connections, he is now leading 
Microsoft's effort to work with the cable industry to enable, for the first time ever, the 
reception of digital television to Windows-based PCs, thereby eliminating the need for set top 
devices, and generating large savings in capital expenditure for United States cable providers 
and consumers. 
The director denied the petition, asserting that some of the petitioner's claims lack corroboration, even after 
the director had requested the necessary evidence. The director also noted, with regard to the EBS broadband 
pilot project, the initial submission stressed the petitioner's involvement in the project; only later did 
witnEsses reveal that the project collapsed when Enron's bankruptcy became impossible to conceal. 
Regarding his current work with Microsof? and Movielink, the director observed that much of this work took 
place after the petition's filing date, and therefore cannot establish that the petitioner was already eligible for 
the benefit sought at the time of filing. 
On appeal, counsel states that the petitioner had submitted "[a] heavily documented and complete response" 
to the director's request for evidence. That response consisted of three witness letters and a letter from 
counsel; the response included no objective documentary evidence. We do not consider such a response to be 
"heavily documented." 
The first 13 pages of counsel's 16-page appellate brief consist almost entirely of passages copied verbatim 
from the response to the director's request for evidence. Some of these passages are repeated twice; for 
instance, a paragraph that first appeared on page 2 of counsel's earlier response appears again, identically 
worded, on pages 4-5 and 13 of the appellate brief. Because these arguments were set forth before the 
director denied the petition, we cannot realistically consider these same recycled paragraphs to represent 
substantive responses to that denial. 
In response to the director's observation that much of the petitioner's work at Microsoft took place after the 
petition's filing date, counsel observes: "The development of [the petitioner's] business plan occurred prior to 
the filing of this petition. . . . The implementation of the business plan is not at issue." We not- 
arlier statement to the effect that he had recruited the petitioner in order to involve him in this 
project. Because the petitioner joined Microsoft prior to the filing date-letter is consistent with 
the assertion that the project now underway was, at the very least, in the planning stages before the filing date. 
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At the same time, we cannot ignore the fact that, when the petition was first filed, the record of proceeding 
contained no mention of the Movielink project at all. Had the director considered the petitioner's initial 
submission to be sufficient, then the petition would have been approved without any discussion of the 
Movielink project. It remains, therefore, that the discussion of the Movielink project rests on information not 
contained in the initial filing, and the introduction of this discussion after the filing date represents a material 
change in the description of the petitioner's work and its significance. 
Even the petitioner's own resume, which is, by design, a document intended to spotlight one's most important 
achievements, does not mention the project. Combined with the total absence from the record of any 
documentary (rather than testimonial) evidence about the petitioner's activities, the petitioner's failure to 
mention the Movielink project in his initial filing raises questions as to whether the petitioner was involved in 
that project at all as of the filing date. His subsequent involvement in the project would constitute a material 
change. A petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to CIS requirements. See Matter of lzummi, 22 I&N Dec. 169 (Comm. 
1998), and Matter ofKatigbak, 14 I&N Dec. 45 (Reg. Comm. 1971). 
Counsel states "Microsoft would not choose an individual to head up the development of a new department 
unless they were sure he was at the very top of his field. Movielink would not agree to take on a project of 
this magnitude without being thoroughly convinced of the individual's extraordinary ability and capacity for 
success. The adjudicator is NOT qualified to refute these experts." The first two sentences in this statement 
are unsupported conjecture by counsel, and the third sentence is a non sequitur because the preceding 
sentences discussed alleged corporate policy of two companies, rather than the statements of any individual 
"experts." Furthermore, with regard to the witness letters, the witnesses' expertise lies in areas other than 
immigration law and policy. The decision of whether to grant immigration benefits lies with CIS, and private 
companies and individuals are not in the position to decide which petitions should be approved. Deference to 
witness expertise does not translate into uncritical approval of every petition supported by expert 
recommendations. 
The director, in denying the petition, had noted that most of the witnesses who work in the petitioner's field 
have close ties to the petitioner. Counsel asserts that the statements from these witnesses should carry 
substantial weight because they are "top officials" of major corporations. It remains that we must distinguish 
between activities that are truly in the national interest, and activities that will primarily benefit one particular 
company or group of companies by giving it (or them) a competitive edge over other U.S. companies that 
seek to provide comparable products or services. 
The record does not show that the petitioner is responsible for the existence or viability of the Movielink 
project as a whole: the launch of Movielink predates the petitioner's employment by ~icrosoft.- 
reference to "traditional online movie rentals" shows that online broadband delivery of motion pictures is not 
a new innovation for which the petitioner is responsible. Indeed, counsel has emphasized that the petitioner's 
expertise is not technological. Rather, the petitioner's work involves only one particular project between 
Microsoft and Movielink, which will benefit only individuals who own specific Microsoft software. The 
petitioner has not shown that his efforts will have an impact on the broadband industry to an extent that will 
benefit the national interest, rather than that of his employer and its clients (who gain market share at the 
expense of competitors). When several United States companies compete in a given market, it is not a 
national interest issue to assure that one particular company (however high its profile) is dominant in that 
market. 
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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. 5 1361. 
The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.