dismissed EB-2 NIW Case: Computer Engineering

identifying data deleted to 
prevent cleady unwarranted 
invasion of personal privacy 
ptml.TC COpy 
DATE: MAY 3 0 2012 OFFICE: TEXAS SERVICE CENTER 
IN RE: 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 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal 
or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 an alien of exceptional ability in the sciences, arts or business or 
member of the professions with experience equivalent to an advanced . The petitioner seeks 
employment as a systems engineer/computer hardware engineer employed 
Virginia. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a 
labor certification, is in the national interest of the United States. The director found that the petitioner 
has not established that the petitioner qualifies for classification as an alien of exceptional ability, or 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 from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The first issue under consideration is whether the petitioner qualifies for classification either as a 
member of the professions holding an advanced degree or as an alien of exceptional ability in the 
sciences, arts or business. The U.S. Citizenship and Immigration Services (USCIS) regulation at 
8 C.F.R. § 204.5(k) states that the petition must be accompanied by documentation showing that the 
alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, 
the arts, or business: 
(i) To show that the alien is a professional holding an advanced degree, the petition 
must be accompanied by: 
(A) An official academic record showing that the alien has an United States 
advanced degree or a foreign equivalent degree; or 
Page 3 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form 
of letters from current or former employer(s) showing that the alien has at 
least five years of progressive post-baccalaureate experience in the specialty. 
(ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or 
business, the petition must be accompanied by at least three of the following: 
(A) An official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, school, or 
other institution of learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) 
showing that the alien has at least ten years of full-time experience in the 
occupation for which he or she is being sought; 
(C) A license to practice the profession or certification for a particular 
profession or occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration 
for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions 
to the industry or field by peers, governmental entities, or professional or 
business organizations. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines an "advanced degree" as "any United States 
academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United 
States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree." 
The petitioner filed the Form 1-140 petition on July 31, 2009. In an initial statement, counsel repeatedly 
stated that the petitioner "is a Member of the Professions Holding Advanced Degrees or Alien of 
Exceptional Ability," but did not specity whether the petitioner claimed to qualify as the former or as 
the latter. Simply declaring the petitioner to be one of the two cannot suffice to establish eligibility. 
Counsel divided much of the introductory statement into sections with the headings "Contributions in 
the Field of Expertise," "Leading Role within Organizations with distinguished reputation" and 
"Evidence of High Salary for Self-Petitioner." These headings roughly correspond to the USCIS 
regulations at 8 C.F.R. §§ 204.5(h)(3)(v), (viii) and (ix): 
Page 4 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or 
business-related contributions of major significance in the field ... ; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The above-cited regulations are among the evidentiary requirements for an entirely different immigrant 
classification, alien of extraordinary ability, under section 203(b)(1)(A) of the Act. Indeed, counsel 
referred to the petitioner's "extraordinary ability" in the introductory statement. The petitioner has not 
sought that classification in the present proceeding, and therefore those criteria are not relevant except 
where they reasonably overlap with the classifications at issue in this proceeding. 
"Evidence of High Salary" relates to the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D), evidence that the 
alien has commanded a salary, or other remuneration for services, which demonstrates exceptional 
ability. The other two headings, however, have no direct analog in the relevant regulations. 
Likewise, counsel did not specifically say whether the petitioner claims to hold an advanced degree or 
post-baccalaureate experience equivalent to such a degree. The only educational credential that the 
petitioner submitted consisted of a copy of a 1992 diploma in Computer Technology from ECPI 
Computer Institute. The submitted documentation does not indicate that the diploma amounts to an 
academic degree, or that ECPI Computer Institute is a degree-granting institution rather than the 
vocational school that its name suggests. The petitioner claimed to have attended North Carolina 
State University from 1986 to 1988, but he claimed no degree from that institution, and the record 
contains no evidence from the university to show that he ever completed a course of study there. 
The director issued a notice of intent to deny the petition on June 14, 2010. In that notice, the director 
quoted in full the regulatory requirements to show exceptional ability. The director also instructed the 
petitioner to submit further documentation of any advanced degree that the beneficiary holds. In 
response, counsel again cited the petitioner's "extraordinary ability" without addressing any of the 
regulatory standards for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Counsel stated: "the Self­
Petitioner does not hold an advance [sic] degree but has the equivalent in years of experience. [The 
petitioner] has over 15 years of experience in the engineering industry." 
By regulation at 8 C.F.R. §§ 204.5(k)(2) and (3)(i)(B), the equivalent of an advanced degree is five 
years of progressive post-baccalaureate experience. Therefore, the petitioner must hold at least a 
bachelor's degree in order for his subsequent experience to be the recognized equivalent of an advanced 
degree. Experience earned before earning a bachelor's degree is not post-baccalaureate, and therefore 
cannot count toward the required qualifying experience. The petitioner, however, submitted no 
evidence that he holds a bachelor's degree. 
The director denied the petition on September 13, 2011, stating: 
Page 5 
Counsel did not claim [in response to the June 2010 notice] that the beneficiary qualified 
as an alien of exceptional ability; therefore, this decision will address advanced degree 
only. 
According to the regulations cited above, the equivalent of a Master's degree is a 
Bachelor's degree in the field and five years of post baccalaureate experience. The 
record does not indicate that the petitioner possesses a Bachelor's degree. Therefore, the 
petitioner cannot meet the advanced degree requirement through the definition of an 
advanced degree. 
On appeal, counsel states: "The Service claimed that the evidence submitted establishes that the Self .. 
Petitioner is eligible for classification as an alien of Exceptional Ability." The director made no such 
finding. Rather, as shown above, the director found no coherent claim that the petitioner qualifies for 
classification as an alien of exceptional ability, even after the director provided the petitioner with a 
second opportunity to correlate the evidence to the specified regulatory requirements. Counsel's 
mistaken reading of the decision does not put the issue back into play. 
Counsel's subsequent appellate brief does not revisit the issue. Therefore, counsel has not contested the 
director's finding that the petitioner does not qualify for classification as a member of the professions 
holding the defined equivalent of an advanced degree. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. US. Au 'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United 
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-
27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were 
abandoned as he failed to raise them on appeal to the AAO). 
The petitioner put forth no coherent claim of eligibility either as an alien of exceptional ability or as 
a member of the professions holding an advanced degree. The petitioner, through counsel, merely 
listed all the submitted evidence with the vague assertion that the petitioner "is a Member of the 
Professions Holding Advanced Degrees or Alien of Exceptional Ability." The AAO will affirm the 
director's finding that the petitioner failed to establish eligibility under either classification. 
The second and final 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. The petitioner cannot qualify 
for the waiver without first establishing that he qualifies as either an alien of exceptional ability or a 
member of the professions holding an advanced degree, but the director decided this issue on the merits 
and the AAO will do the same. 
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, WIst Cong., 1st Sess., 11 (1989). 
Page 6 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now 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 of New York State Dept. of Transportation (NYSDOT), 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 
qualifications. 
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 USCIS 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. 
In an introductory letter, counsel stated that the petitioner: 
is a highly qualified Systems/Computer Hardware Engineer. He has over 15 years of 
experience ... with CISCO Corporation .... 
His current primary areas of consultation include Optical Network Design, Storage 
Network Design, Campus-Switching, and Core-Routing .... He represented the Mid­
Atlantic Area in the Optical and Storage TLP's (Technology Leadership Programs). As 
a member of the TLP, [the petitioner] authored "Opportunity Description Documents" 
... that helped drive the relevant Business-Units to develop features and platforms to 
meet the market demands for these Advanced Technologies. As a TLP member, his 
Page 7 
is to act as a conduit between 
His responsibilities within the 
is foremost as a consultant and trusted advisor, to facilitate, design 
and solve complex Technical Business solutions, in a Pre-Sales capacity. As a Systems 
Engineer, he has received multiple awards from the organization for his excellence in 
and out of the field .... 
[The petitioner] contributes to the developments and advancements in the following 
sectors in the U.S.: 
• Internet Technology 
• Defense & Safety 
• Telecommunications Engineering 
• Network Security 
Counsel asked, rhetorically, "What distinguishes [the petitioner] from other U.S. Workers with 
comparable professional qualifications?" and answered: 
Due to the Increasingly Global Nature of the Political, Business, and Security 
competitive landscape, the US Increasingly will benefit from citizens with foreign 
language skills and background in order to stay competitive as a world Economic leader, 
have a large stake in the dwindling market of 'natural-resources' (such as Oil and 
Minerals which are mostly in Middle-East & Africa) and averting threats from the 
emerging markets of Asia, Middle-East, Africa and South America. 
The combination of[the petitioner's] education, cultural background and technical skills 
certainly brings a unique asset to the US. 
The above passage, however, failed to answer counsel's own question that preceded it. 
The petitioner submitted letters from current and former employers and clients, but most of these letters 
did little more than list specific technical functions that the petitioner performed in the course of his 
An . is an October 30, 2008 letter from ••••••••••••• 
ashington, D.C., who stated: 
I have worked with [the petitioner] since 2001 and can attest to both his superior 
technical ability and his personal and professional commitment to the success of the 
projects on which he assisted The George Washington University. Initially, [the 
petitioner] was assigned to the University as our Systems Engineer, assisting us with all 
of our technical needs. However, even after being reassigned, [the petitioner] has 
continued to be a key technical resource for some critical projects and on-going 
operational efforts at GW. 
Page 8 
[The petitioner] assisted GW with an ambitious project to build o[u]r first Dense Wav 
Division Multiplexing ring to connect two campuses which house the University's two 
data centers .... 
[The petitioner] worked with us tirelessly from developing the requirements, to 
designing and implementing the solution. The breadth and depth of his expertise was 
demonstrated on this project as we needed not only optical expertise to design and 
implement the service, but also guidance on how to handle synchronous storage 
replication between separated sites .... 
Since that project's completion, the University has received awards for our dual data 
center, active-active design and [the petitioner's] expertise was critical in the successful 
completion and operation of the ring. 
The petitioner also submitted a copy of a November 12, 2008 letter from ••••••••• 
University, Pittsburgh, 
Pennsylvania, who stated: 
[The petitioner] possesses extensive experience in Internet Technology and 
Telecommunications Engineering, experience which is complemented by his academic 
knowledge. His ability to solve technical problems through experiments in aspects of 
network communications engineering, specifically, demonstrates his exceptional value 
as an Internet and Telecommunications engineer. ... 
[The petitioner] possesses a deep understanding of Internet and cyber-security, and has 
experience in these matters which are of serious significance to all Americans, and 
hence vital to the national interests of the United States .... 
Additionally, his extensive knowledge of 'Data Center' design benefits government 
agencies and other commercial enterprises. However, it is not too hard to see how this 
benefits the average citizen. For example, helping an agency such as FEMA implement 
a 'Disaster Recovery' solution ultimately helps that agency provide uninterrupted crucial 
services that benefit all Americans. In fact, during 9/11 and Katrina, [the petitioner] 
assisted the American Red Cross in implementing secure online services to handle 
internet based donations .... 
Few other experts in the fields of Internet Technology and Telecommunication 
Engineering possess the high-level experience in directing internet and 
telecommunications networks, or the ability to optimize their engineering processes with 
marked, substantiated improvement. 
did not identify the evidence, if any, that he reviewed prior to writing his evaluation, nor 
did he explain how he came to know of the petitioner's experience and achievements. 
Page 9 
simply declared that the petitioner is such a superior expert in his field that he should receive the 
national interest waiver. 
In the June 14, 2010 notice of intent to deny the petition, the director instructed the petitioner that he 
"must persuasively demonstrate that the national interest would be adversely affected if a labor 
certification were required." In response, the petitioner submitted copies of previously submitted 
materials as well as other documentation relating to various projects. Eligibility for the waiver is not 
inherently evident from the technical details of the petitioner's work or from the reputation of his 
employers and clients. 
The petitioner also submitted a copy of an earlier letter from Dr. Shepherd, dated March 3, 2008, 
stating: 
[The petitioner] qualifies as an individual of extraordinary ability in the fields of Internet 
Technology and Telecommunications Engineering, possessing skills, knowledge, and 
achievements which would greatly serve the national interest of the United States. 
Moreover, it is my opinion, that the national interest of the United States would be 
adversely affected if he were required to obtain a labor certification, as he possesses the 
unique combination of professional achievement, scientific innovation, and leadership 
ability in the fields of Internet Technology and Telecommunications Engineering, to 
improve the technology and safety of Americans. These skills, unmatched by any U.S. 
worker with solely the minimum of credentials and experience, are vital and critical to 
the national interest of the United States, and hence, the national interest of the United 
States would be adversely affected if these skills were not put to good use for the benefit 
of the US and its citizens . 
. . . [H]e has been called upon to work with such high-profile, industry-leading clients as 
the Department of Energy, the Virginia Department of State, and the Library of 
Congress. Being called upon to hold high-level Engineer positions in prominent 
Telecommunications Engineering corporations, and to assist high-profile national and 
federal governmental agencies, clearly demonstrates his expertise and technical 
knowledge in Internet Technology and Telecommunications Engineering. 
. . . Few other experts in the fields of Internet Technology and Telecommunications 
Engineering possess the [same] high-level experience in directing internet and 
telecommunications networks, or the ability to optimize their engineering processes with 
marked, substantiated improvement. Therefore, [the petitioner's] unique combination of 
technical knowledge and leadership ability set him apart from other professionals in the 
field. 
Counsel noted that the petitioner "provided technical consultative services to various government 
related agencies and organizations: Department of Energy, Department of State, Library of Congress 
and the Army." Serving government clients is not, on its face, evidence of eligibility for the waiver, and 
Page 10 
the record contains nothing from those entities to establish the significance of the petitioner's work or to 
show to what extent his achievements lay beyond the capabilities of qualified United States workers. 
In the September 13, 2011 denial notice, the director found that the petitioner had offered only general 
assertions in support of the petition. The director acknowledged witnesses' statements regarding the 
petitioner's skills, but found that expertise in one's field does not guarantee approval of the waiver. The 
director also found that the petitioner's work lacks national scope. 
On appeal, counsel again describes several specific projects that the petitioner has undertaken for the 
Red Cross and federal entities. These assertions establish the national scope of the petitioner's work, 
because implementation of these programs has a national effect rather than strictly local applications. 
Counsel describes the threat of intrusion into government and corporate computer systems, and asserts 
that the United States must remain competitive in information technology, but offers no specifics as to 
how the petitioner has served or will serve the national interest in these areas to an extent that would 
justify a waiver of the job offer requirement. Counsel merely contends that the petitioner is such an 
expert in his field that he is sure to benefit the United States through his future efforts. 
Throughout the proceeding, counsel has contended that the job offerllabor certification requirement 
does not apply because the petitioner's employer has no desire to replace the petitioner with a United 
States worker. Nothing in the statute or regulations, however, indicates that the job offer requirement 
applies only when the employer desires to replace an alien worker. Indeed, no employer would seek a 
labor certification for an employee that the employer wished to replace. The question is not whether the 
employer wants to retain the petitioner's services, but whether it is in the national interest to deprive 
qualified United States workers of the opportunity to compete for the position. 
By statute, either exceptional ability or an advanced degree is a necessary, but not sufficient, basis for 
the national interest waiver. In the present proceeding, the petitioner has established several years of 
experience in his field, often working for high-profile clients, but the evidence submitted does not 
establish that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. The petitioner also has not established eligibility for either of the two 
underlying immigrant classifications that would permit him to apply for the waiver in the first place. 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The 
petitioner has not met that burden. 
ORDER: The appeal is dismissed.