dismissed EB-2 NIW Case: Communications

(b)(6)
DATE: JUN 1 2 2015 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions 
must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~~ 
Ron Rosenberg /(-
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the 
appeal. 
The petitioner seeks classification for the beneficiary under section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), as an advanced degree professional. 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 beneficiary 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. 
On appeal, the petitioner submits a brief and a copy of the prior submissions. For the reasons 
discussed below, upon review of the entire record, we agree with the director's findings. 
I. lAW 
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 record reflects that the beneficiary qualifies as a member of the professions holding an advanced 
degree. The sole issue in the instant petition 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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990, P.L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990) (IMMACT90), published at 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991), states, in pertinent part: 
The Service 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. 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the beneficiary seeks employment in an 
area of substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the beneficiary's 
proposed benefit will be national in scope. /d. Finally, the petitioner seeking the waiver must establish 
that the beneficiary will serve the national interest to a substantially greater degree than would an 
available U.S. worker having the same minimum qualifications. /d. at 217-18. 
Although the national interest waiver hinges on prospective national benefit, the petitioner must 
establish that the beneficiary's past record justifies projections of future benefit to the national interest. 
/d. at 219. The petitioner's assurance that the beneficiary will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. 
Further, assertions regarding the overall importance of a beneficiary's area of expertise are relevant, 
but cannot by themselves suffice to establish eligibility for a national interest waiver without a 
review of the beneficiary's own qualifications. /d. at 220. Moreover, being "unique" does not 
inherently meet the national interest threshold. The issue of whether similarly-trained workers are 
available in the United States is an issue under the jurisdiction of the U.S. Department of Labor 
through the alien employment certification process. /d. at 221. 
II. ANALYSIS 
The petitioner filed the Form I-140 petition on July 25, 2013. As evidence the petitioner submitted 
various documents, including copies of the following: 
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I. the beneficiary's academic credentials ; 
2. employment verification letters; 
3. the beneficiary's professional memberships; 
4. blog posts by the beneficiary; . 
5. published material that quotes the beneficiary; 
6. reference letters; and 
7. information about the petitioner and other organizations for which the beneficiary has 
provided services. 
The preceding includes types of evidence that can contribute toward a finding of exceptional ability, 
the focus of the petitioner 's initial filing. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Exceptional ability, 
however, is not self-evident grounds for the waiver. See section 203(b)(2)(A) of the Act. 
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 individual seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in her field of expertise. 
The petitioner has established that the beneficiary's job as the Director of Communications for the 
petitioner is in an area of intrinsic merit and that the proposed benefits, education of the American 
public and U.S. policy makers about pressing global 
affairs, 1 would be national in scope. It remains , 
then, to determine whether the proposed benefits of the beneficiary's work will benefit the national 
interest to a greater extent than an available U.S. worker with the same minimum qualifications. At 
issue is whether the beneficiary 's contributions in the field are of such significance that she merits 
the special benefit of a national interest waiver, a benefit separate and distinct from the visa 
classification she seeks. A petitioner must demonstrate the beneficiary 's past history of achievement 
with some degree of influence on the field as a whole. !d. at 219, n. 6. 
On November 12, 2013, the director issued a request for evidence (RFE). The director found that 
"[t]he petitioner did not submit evidence of past contributions that would warrant the expectation of 
a national prospective benefit to a degree that would overcome the national benefit of the labor 
certification" and requested "evidence to establish that the beneficiary's past record justifies 
projections of future benefit to the nation." (Emphasis in original.) In response, the petitioner 
submitted two additional letters and a printout from the petitioner 's website regarding their history. 
The director denied the petition on September 29, 2014 concluding, in part, that the petitioner had 
1 
The petitioner discusses these proposed benefits in response to the director 's November 12, 2013 notice. 
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not established the beneficiary's "influence on the field as a whole" or "the significance and impact 
of her work." 
The petitioner submitted two reference letters with the initial petition from the beneficiary's former 
colleagues at According to Director of 
Network Program Development for the beneficiary "was responsible for driving the 
editorial content of the entire, daily, ninety minute long show" in her role as senior producer and was 
also "an editorial leader on the show." In addition, she states that "our audience was kept better 
informed than consumers of any other media about everything from the Sudan, to the DRC, to South 
Africa and beyond." According to Senior H~st for Network Current Affairs, the 
beneficiary "provided unique insight into a number of key international jurisdictions" and "was the 
African expert for "' 
Senior Producer for 
and the 
the beneficiary 's employment history and 
positions. 
who worked with the beneficiary "at both 
in London" provides information regarding 
additional details regarding her duties and previous 
While all of the beneficiary's colleagues speak very highly of her and demonstrate her value to her 
employers, the letters do not establish her influence on the field. 
In response to the director 's RFE, the petitioner submitted two letters which discuss the Director of 
Communications position, but not the beneficiary. Vice-President of 
Communications for provides an overview of "the important and significant role that a 
Director of Communications at an such as [the petitioner] plays in our national dialog." 
President of the petitioning organization, elaborates on the duties of the 
beneficiary's position and its importance to the organization. Similar to the above, the letters 
establish the importance of the position to the petitioning employer, but they do not demonstrate that 
the beneficiary has made a demonstrable impact on her field. 
As previously discussed , whether a given individual seeks classification as an alien of exceptional 
ability, or as a member of the professions holding an advanced degree, that individual cannot qualify 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily 
encountered in her field of expertise. The national interest waiver is a separate benefit from the 
classification sought, and therefore eligibility for the underlying classification does not necessarily 
demonstrate eligibility for the benefit of the waiver. 
Based upon the submitted information, the petitioner has been a successful producer with a focus on 
Africa for a number of respected organizations . She is a member of the 
and the Membership in however, 
requires only that the individual is "experienced in international affairs 
'' The 
is "[a] professional forum" which "is comprised of communications 
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professionals . -
_ ' While the organizations may have had an impressive list of past 
speakers and/or members, the beneficiary's membership in these organizations does not demonstrate 
an impact on the field. 
The petitioner submitted copies of the beneficiary's blog posts on and one 
guest blog post on the _ website. The blog posts on the were reports on 
her assignments abroad with the petitioner. Although the petitioner submitted information regarding 
the publication the petitioner did not submit any evidence 
regarding the . or 
the requirements to appear in their morning news alert to establish their impact. The petitioner did 
not submit any information regarding 
Regarding the article in the subject of the article was 
. The beneficiary, a producer for the show at the time, provided a brief description of the 
two stories, one on · and the other on ' 
The article does not 
establish the impact of the beneficiary beyond her employer. 
The petitioner also submitted evidence that the beneficiary has been invited to speak by 
and the According to the submitted information, the beneficiary 
"volunteerf ed] to be a mentor at the and the event was 
The petitioner has not 
demonstrated the beneficiary's impact beyond the student she mentored or the individuals attending 
the ' 
The petitioner, referencing reference letter, asserts that the beneficiary, while a 
producer for "conducted the first ever 
however, only states that the beneficiary produced the interview. Further, . unlike 
and did not work with the beneficiary at and neither of the 
beneficiary's colleagues address the issue. While the beneficiary has developed contacts that 
allowed her to excel as a producer, the petitioner has not established that the beneficiary's work on 
such an interview, or with other political dignitaries, has impacted the field of news production or 
public relations/communications. 
The submitted documentation demonstrates that the beneficiary is an experienced producer who has 
worked for a number of respected organizations and developed many significant contacts 
internationally. These qualities clearly make the beneficiary an asset to the petitioner. The issue of 
whether willing, qualified workers are available in the United States, however, is an issue under the 
jurisdiction ofthe Department of Labor. Section 212(a)(5)(A) ofthe Act, 8 U.S.C. § 1182(a)(5)(A); 
NYSDOT, 22 I&N Dec. at 221. At issue is whether this beneficiary 's contributions in the field are of 
such significance that she merits the special benefit of a national interest waiver, a benefit separate 
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and distinct from the visa classification she seeks. A petitioner must demonstrate the beneficiary's 
past history of achievement with some degree of influence on the field as a whole. !d. at 219, n. 6. 
None of the submitted documents establish that the beneficiary's specific work as a producer, and 
more recently as the Director of Communications, has affected the field as a whole. The petitioner 
has not established the beneficiary's past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that the beneficiary's influence be national in 
scope. NYSDOT, 22 I&N Dec. at 217, n.3. More specifically, the petitioner "must clearly present a 
significant benefit to the field of endeavor." Id. at 218. See also id. at 219, n.6 (the individual must 
have "a past history of demonstrable achievement with some degree of influence on the field as a 
whole"). 
On appeal, the petitioner relies on a non-precedent AAO decision to assert that the beneficiary may 
establish "the significance and impact of her work on [a] national and international level rather than just 
a general field." While 8 C.F.R. § 103.3(c) provides that precedent decisions ofUSCIS are binding on 
all its employees in the administration of the Act, non-precedent decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes. 8 C.F .R. § 103.1 0( e). 
Regardless, the cited decision found that "the scientific community recognizes the significance of th[ e] 
petitioner's research rather than simply the general area of research" and that "the petitioner has 
established a substantial level of influence in her field." Specifically, the petitioner in that case made a 
significant "contribution to the TOR field," and provided substantial documentation to support such a 
fmding, including published works and a "substantial and growing citation history." 
As stated in the director's decision, "[a]s 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." The director's decision also states that 
"[e]ligibility for the waiver must rest with the petitioner's own qualifications rather than with the 
position sought." The other decision the petitioner cites on appeal states that "[i]t does not 
appear to 
have been the intent of Congress to grant national interest waivers on the basi s of the overall importance 
of a given field of research, rather than on the merits of the individual alien." The petitioner in that case 
demonstrated, among other things, that his published research had been widely cited and that other 
researchers relied on his findings to further their own research. The decision makes clear that the 
favorable finding was not based upon the importance of the petitioner's field of cancer research, but 
rather on the impact of the petitioner's own research on the field. 
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. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
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