dismissed EB-2 NIW Case: Civil Engineering

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PUBLICCOPY
U.S.Departmentof HomelandSecurity
U.S.CitizenshipandImmigrationServices
AdministrativeAppealsOffice (AAO)
20MassachusettsAve.,N.W.,MS2090
Washington,DC 20529-2090
U.S.Citizenship
and Immigration
Services
DATE: OCT 0 6 2011 OFFICE:TEXASSERVICECENTER
IN RE: Petitioner:
Beneficiary:
PETITION: ImmigrantPetitionfor AlienWorkerasaMemberof theProfessionsHoldinganAdvanced
Degreeor anAlien of ExceptionalAbility Pursuantto Section203(b)(2)of theImmigration
andNationalityAct, 8U.S.C.§ 1153(b)(2)
ONBEHALF OFPETITIONER:
INSTRUCTIONS:
Enclosedpleasefind thedecisionof theAdministrativeAppealsOffice in yourcase. All of thedocuments
relatedtothismatterhavebeenreturnedtotheofficethatoriginallydecidedyourcase.Pleasebeadvisedthat
anyfurtherinquirythatyoumighthaveconcerningyourcasemustbemadetothatoffice.
If you believethe law was inappropriatelyappliedby us in reachingour decision,or you haveadditional
informationthatyou wishto haveconsidered,you mayfile a motionto reconsideror a motionto reopen.The
specificrequirementsfor filing sucha requestcan be found at 8 C.F.R.§ 103.5. All motionsmustbe
submittedto theoffice thatoriginally decidedyourcaseby filing aFormI-290B,Noticeof Appealor Motion,
with a fee of $630. Pleasebe awarethat 8 C.F.R. § 103.5(a)(1)(i)requiresthat any motion must be filed
within 30daysof thedecisionthatthemotionseeksto reconsideror reopen.
Thankyou,
P ry Rhew
Chief,AdministrativeAppealsOffice
www.uscis.gov
Page2
DISCUSSION: TheDirector,TexasServiceCenter,deniedtheemployment-basedimmigrantvisa
petition.ThematterisnowbeforetheAdministrativeAppealsOffice(AAO) onappeal.TheAAO will
dismisstheappeal.
Thepetitionerseeksclassificationpursuantto section203(b)(2)of theImmigrationandNationalityAct
(theAct), 8 U.S.C.§ 1153(b)(2),asanalienof exceptionalability in thesciencesandasa memberof
theprofessionsholdinganadvanceddegree.Thepetitionerseeksemploymentasacivil engineer.The
petitionerassertsthatanexemptionfrom therequirementof ajob offer,andthusof alaborcertification,
is in the nationalinterestof the UnitedStates. The directorfound that the petitionerqualifiesfor
classificationasamemberof theprofessionsholdinganadvanceddegree,butthatthepetitionerhasnot
establishedthatanexemptionfromtherequirementof ajob offerwouldbein thenationalinterestof the
UnitedStates.
Onappeal,thepetitionersubmitsabrief from counsel.
Section203(b)of theAct states,in pertinentpart:
(2) Aliens Who Are Membersof the ProfessionsHoldingAdvancedDegreesor Aliens of
ExceptionalAbility.-
(A) In General.- Visasshallbe madeavailable. . . to qualifiedimmigrantswho are
membersof the professionsholding advanceddegreesor their equivalentor who
becauseof their exceptionalability in thesciences,arts,or business,will substantially
benefitprospectivelythenationaleconomy,culturalor educationalinterests,or welfare
of theUnitedStates,andwhoseservicesin thesciences,arts,professions,or business
aresoughtby anemployerin theUnitedStates.
(B) Waiverof JobOffer-
(i) . . . the Attorney General may, when the Attorney Generaldeemsit to be in
thenationalinterest,waivetherequirementsof subparagraph(A) thatanalien's
servicesin thesciences,arts,professions,or businessbesoughtby anemployer
in theUnited States.
The petitionerclaimseligibility for classificationasan alienof exceptionalability in the sciences.
The recordreadily establishes,however,that the petitioneris a memberof the professionswith
progressivepost-baccalaureateexperienceequivalent to an advanceddegree. A separate
determinationregardingthepetitioner'sclaimof exceptionalability wouldbemoot;it wouldoccupy
significantspacein thisdecision,withoutaffectingtheultimateoutcomethereof. Thesoleissuein
contentionis whetherthepetitionerhasestablishedthatawaiverof thejob offerrequirement,andthusa
laborcertification,is in thenationalinterest.
Page3
Neitherthe statutenor the pertinentregulationsdefinethe term "nationalinterest." Additionally,
Congressdid not providea specificdefinitionof "in the nationalinterest." The Committeeon the
Judiciarymerelynotedin itsreportto theSenatethatthecommitteehad"focusedonnationalinterestby
increasingthe numberand proportionof visasfor immigrantswho would benefit the United States
economicallyandotherwise.. . ." S.Rep.No.55,101stCong.,1stSess.,11(1989).
Supplementaryinformationto regulationsimplementingthe ImmigrationAct of 1990(IMMACT),
publishedat56Fed.Reg.60897,60900(November29,1991),states:
The Service[now U.S. Citizenshipand ImmigrationServices(USCIS)] believesit
appropriateto leavetheapplicationof thistestasflexible aspossible,althoughclearly
an alien seekingto meet the [national interest] standardmust make a showing
significantly above that necessaryto prove the "prospectivenational benefit"
[requiredof aliensseekingto qualifyas"exceptional."] Theburdenwill restwith the
alien to establishthat exemptionfrom, or waiver of, the job offer will be in the
nationalinterest.Eachcaseis to bejudgedonits ownmerits.
Matterof NewYorkStateDept.of Transportation,22 I&N Dec.215(Act. Assoc.Comm'r 1998),has
set forth severalfactorswhich must be consideredwhen evaluatinga requestfor a nationalinterest
waiver. First, the petitionermust showthat the alien seeksemploymentin an areaof substantial
intrinsicmerit. Next, the petitionermustshowthatthe proposedbenefitwill be nationalin scope.
Finally,thepetitionerseekingthewaivermustestablishthatthealienwill servethenationalinterestto a
substantiallygreaterdegreethan would an availableU.S. worker having the sameminimum
qualifications.
Whilethenationalinterestwaiverhingeson prospectivenationalbenefit,thepetitionermustestablish
thatthealien'spastrecordjustifiesprojectionsof futurebenefitto thenationalinterest.Thepetitioner's
subjectiveassurancethat the alien will, in the future, servethe nationalinterestcannotsufficeto
establishprospectivenationalbenefit. Theintentionbehindtheterm"prospective"is to requirefuture
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrableprior
achievements,andwhosebenefitto thenationalinterestwouldthusbeentirelyspeculative.
The AAO alsonotesthat the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a
degreeof expertisesignificantly abovethatordinarily encountered"in a given areaof endeavor.By
statute,aliens of exceptionalability are generally subject to the job offer/labor certification
requirement;they arenot exemptby virtue of their exceptionalability. Therefore,whethera given
alienseeksclassificationasanalienof exceptionalability,or asamemberof theprofessionsholding
an advanceddegree,that alien cannotqualify for a waiver just by demonstratinga degreeof
expertisesignificantlyabovethatordinarilyencounteredin hisor herfield of expertise.
Thepetitionerfiled theFormI-140petitionon December2, 2009. In anintroductorybrief, counsel
stated:
Page4
Petitionerdemonstratesa uniqueability to design,configure,anddirectexecutionof
restorationsin connectionwith historicstructures,aswell asexperiencewith modern
structures,all coupledwith aneyefor specialdetailandrefinementinstrumentalfor
meetingefficiencyandcosteffectiveness.While thepertinentprojectsdonotnumber
many,oneoughtto keepin mind thatPetitionerholdslengthyexperienceinvolving
complicatedCivil Engineeringwheremanyof theseprojects,eventhosewhich did
notreachcompletion,consumemanymonthsof time.
Counselcited "a real, nation-wideneedto restoreprestigiousandculture-richhistoricalbuildings
that alsoinvite tourismandan understandingof Americanhistory." Counselstatedthat the labor
certificationprocess,whichrequiresa permanentjob offer from a singleemployer,"would severely
cripple"thepetitioner'sability to "offer [h]is servicesto manygroupssimultaneouslyin needof his
talents."
Four letters- one from a client, and the other three from the petitioner'sformer employers-
accompaniedthe petitioner's initial filing. Said generalmanagerand owner of
stated:
[The petitioner]carriedout quite a few constructionprojectsof variabletypesthat
variesfrom [a] conventionallargeapartmentcomplexbuildingto a largecommunity
school.. . . Oneprojectthatcomesto mind . . . wasthatof a seriesof largeconcrete
stationsthat madethefoundationfor theelectricpowerGeneratorsin Tripoli. That
wasoneof our firm's biggestandmostchallengingprojectsgivenits complexityand
safety measuresthat were required. [The petitioner] demonstratedoutstanding
performancein handlingmajorprojectsrelatedto my firm. Giventhefact that [the
petitioner]wasalwaysdetailorientedandspentextratime andenergyto recalculate
every step,that was our savinggracein preventingany mistakesand discovering
deviationsfrom theoriginalplanearly.
Thanks [to] his dedicated and meticulous work, we were able to rectify the problem
and change both the design and concrete/steel layout to withstand the unforeseen
challenges.
stated:
[The petitioner] was hired as a project engineerto overseethe progressof contract
jobsin Beirut,in andaroundthecity.
Shortly after he startedhis job, [the petitioner]rapidly impressedeveryonein his
division by his endlessdedicationto the job and absoluteloyalty in which he
approachedevery assignment.. . . His extensiveknowledgeand experiencewith
contractingsoonmadehim the manto go to for consultationor wheneveran issue
occurredon site.. . .
Page5
[The petitioner's] outstandingwork was demonstratedin
This project involved building the school'ssportscompex. e spo s
complexconsistedof an Olympic pool, squashcourts,tenniscourts,mini-football
courts, indoor and outdoor volleyball courts and an Olympic running track. The
projecthadvery strict time constraintsandneededto becompletedin lessthaneight
months. [The petitioner's] primary assignmentwas to overseethe day to day
progressandreport to the company. [The petitioner] not only did a remarkablejob
submitting weekly reports but he excelled in resolving onsite problems and
remarkablycompletedtheprojectin sevenmonths.. . . [I]n theprocessof tiling the
indoor swimmingpool, the subcontractorhad a hardtime cuttingthe piecesto the
specified dimensionsas designedby the architect. [The petitioner] took the
measurementsandcalculatedtheminto AutoCADto redesignthelocationof thetiles
and modified the tile sizes,[which] simplified the cutting processand savedthe
companythreedaysof work, in additionto eliminatingthearchitectfeeto modify the
prmts.
It is hard for me to talk about [the petitioner's] work with Gauche[sic] without
mentioningthe astonishingjob he did on therenovationof theOudaimeBuilding in
Jounieh. [The] OudaimeBuilding is a hundredfifty yearold structure[,]part of the
historic district in downtownJounieh. It marks as one of the oldest buildings
standingprior to theLebaneseIndependence.Therenovationconsistedof renewing
theroof andtheoutsidewallskeepingthehistoriclook andarchitecturein a oneyear
time frame. [Thepetitioner]oversawthedayto dayoperationsandwasableto spota
major mistakein theprints providedby the architect. The architect'sprints for the
walls showedthattheywereright angled. . . [but] thewalls werein reality skewed.
After discussionwith thearchitect,theprints wereredesignedtaking into account[the
petitioner's]findings.
(no specific location provided),
stated:
[T]he restorationof our 125 year old convent . . . was extremelytedious and
challengingin somanyways.. . . This Conventrepresentsa very importanthistoric
building andhas an enormousreligious meaningto our history. We did not know
how to approachthe renovationwithout changingits characteror modifying it from
its original design. [The petitioner] took on this extremelychallengingtask and
demonstratedtalentbeyondbelief in restoringthe conventto a shapeandstructure
thatwassotrueto its originaldesign.
stated:
Page6
I havefound [thepetitioner]to be extremelyreliableanddependablein carryinghis
job requirements.. . .
The one characteristicof [the petitioner] that has gainedhim the respectof his
colleaguesand many professionalengineersthat he hasworkedwith is his astute
problemsolvingskills. [Thepetitioner]is extremelydetailorientedandmeticulous
with hisreporting.It ishisabilityto captureandknowthedetailsof constructionthat
helpshim to developsolutionsto potentialproblemsthatmayariseon a construction
site. Oneexample[that] comesto mind involvesa conflictthatarosewhile we were
constructingathirty-five fooddeep(35ft.) foundationof aproposedforty (40) storey
building in New York City. The adjacentpropertyownerhad expressedconcern
abouthis building settling subsequentto the seventeen(17ft.) feet of underpinning.
Upon investigation to see if this claim was valid, [the petitioner] had full
documentationof everywork detail in his day-to-daylogs andsketchesasto what
work was performedwith the correspondinglocation at the site. With that accurate
and detailed information, the activity/equipmentthat generatedthe situation was
identifiedandalternativemeansto performthework wereimplemented.
Thewitnessesdid not indicatethatthepetitionerspecializesin restorationor preservationof historic
structures.Rather,they describeda rangeof projects,from renovationof century-oldbuildingsto
theconstructionof anew skyscraper.
On April 6, 2010, the director instructedthe petitionerto submit further evidenceto meetthe
guidelinespublished in Matter of New York StateDept. of Transportation. The director stated:
"While the petitionerhasbeenableto providesomespecificinformationaboutparticularprojects
that he has undertaken,he has not shownthat theseactivities distinguishhim from other civil
engineersto suchan extentthathe qualifiesfor the specialadditionalbenefitof a nationalinterest
waiver."
In response,the petitioner submitted four more witness letters. One letter, attributed to an official of
Jounieh Municipality (the signature is not fully legible), discussedthe historical significance of the
OuidameHouseandthanked"the company,which completedtherenovationwork on theOuidame
House."Theletterpraisedthequalityof thework butdidnotmentionthepetitionerspecifically.
statedthat the petitioner "was the lead engineer
responsiblefor the execution o some o our main projects," including the Ouidame House
renovation. tatedthatthepetitionerwasonvacationwhenawall collapsed,leadingthe
companyto suspendwork until thepetitionerreturned,atwhichtimethepetitioner's"effortsledto a
settlementthathelpedminimizethefinanciallossof thecompanywhile preservingthesafetyof the
neighborsandworkersat thesametime. It wasunderhis supervisionthattherenovationwork was
completedandachievedontime."
Page7
in his secondletter, statedthat the petitioner's"astuteproblemsolving skills and
meticulousattentionto details madehim an invaluableassetwhile developingthe preliminary
constructionlo istics" for renovationprojects"in the MetropolitanMuseumof Art in New York
City." observedthat the renovationshad to take place without interruptingpublic
accessibilityto the museum,andin the controlledclimaterequiredfor the art works (includinga
waterproofingsystemduringtheinstallationof askylight).
, stated:
[The petitioner]hasbeenworking asa freelanceworkerfor me since. . . January,
2010.
[The petitioner]doesfield work for me,he measure[s]houses,storesbusiness[sic],
andpreparesthefloor plansnecessaryfor me.. . . I amdependanton [thepetitioner)
to helpmewith my businesssothatwe cangrowmy businessanddo a largevolume
of work together.
Sadlyto sayI havehiredmanyotherpeoplein thepastandI havenothingasgoodto
sayaboutthem.
[The petitioner]is the one I really trust and if he is not hereto help me with my
business,most likely I will not be hiring anyoneelse. It's pointlessto have a
draftsmanthatdoesadrawingfor meandhavingto almostredrawtheentiredrawing.
Thedirectordeniedthepetitionon May 25, 2010,acknowledgingthe substantialintrinsicmerit of
thepetitioner'soccupation,but finding that the petitionerhadnot establishednationalscope. The
directorrepeatedthe assertionthatdetailsaboutindividual projectsfail to showthat the petitioner
qualifiesfor thewaiver.
On appeal,counsel statesthat the petitioner has shown "a unique ability to design, configure, and
direct executionof restorationsin connectionwith historic structures,as well as experiencewith
modernstructures,all coupledwith aneyefor specialdetailandrefinementinstrumentalfor meeting
efficiencyandcosteffectiveness."Counselrepeatstheclaimsthat,if thejob offerrequirementholds
the petitioner to a single employer, he will be unable to work for several different employers
simultaneously.Much of therestof the appellatebrief consistsof quotationsfrom witnessletters
andassertionsregardingthepetitioner'sskill asacivil engineer.
Thepreservationof nationallandmarksis in the nationalinterest. Suchstructuresarehistorically
importantandoffer aneconomicbenefitattouristattractions.Nevertheless,it cannotsufficefor the
petitionersimply to assertthat he qualifiesfor the waiverbecausehe intendsto assistin historic
preservationefforts. ThepetitionerhasrepeatedlycitedEllis Islandasanexampleof a landmarkin
needof renovation,but the record containsno evidencethat the National Park Service,which
Page8
currentlymaintainsEllis Islandaspartof the Statueof Liberty NationalMonument,hasexpressed
anyinterestin employingthepetitionerfor thatpurpose.
Additionally,thepetitioner'scareerto datehasnot focusedexclusivelyor even,it seems,primarily
on historic structures. Rather,the recordshowsa variety of constructionjobs, someinvolving
completelynew buildings. In effect,the petitionerseeksthe nationalinterestwaiver becausehis
future work as a civil engineermay occasionallyinvolve historic preservation.Suchspeculation
restson unpredictablefactors,andis not a reliablebasisfor the permanentimmigration benefitthat
thepetitionerseeks.
Also, while theintrinsicmerit andnationalscopeof historicpreservationarenot in dispute,thereis
no blanket waiver for civil engineers. The petitioner still must show that he offers a greater
prospectivebenefitin thatareathanqualifiedUnitedStatesworkers. All thepetitionerhasoffered
in thatareais a handfulof anecdotalwitnessstatements,statingthatthepetitionerhassuccessfully
handledsuchprojectsin thepast.
Thedirectordid not disputethatthepetitioneris a skilledandsuccessfulcivil engineer.By statute,
however,exceptionalability - definedas"a degreeof expertisesignificantlyabovethat ordinarily
encountered"- does not guaranteeor imply eligibility for the national interest waiver. The
petitionermay desiregreaterflexibility than a singleemployercan offer, but evenif he wereto
pursueclassificationthroughanemployer-filedpetitionwith a laborcertification,he wouldbe able
to changeemployersor engagein freelancework afterbecominga lawful permanentresident.The
job offer/laborcertificationrequirementdoesnot permanentlylock analieninto a particularjob for
therestof hisor hercareer.
As is clearfrom a plain readingof the statute,it wasnot the intentof Congressthat everyperson
qualifiedto engagein aprofessionin theUnitedStatesshouldbeexemptfromtherequirementof ajob
offer basedon nationalinterest.Likewise,it doesnot appearto havebeenthe intentof Congressto
grantnationalinterestwaiverson thebasisof theoverallimportanceof a givenprofession,ratherthan
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not
establishedthat a waiver of the requirementof an approvedlabor certification will be in the national
interestof theUnitedStates.
The burdenof proof in theseproceedingsrestssolely with the petitioner. Section291 of the Act,
8U.S.C.§ 1361.Thepetitionerhasnotsustainedthatburden.
ORDER: Theappealisdismissed.