dismissed EB-2 NIW Case: Computer Information Systems

identifying data deleted to 
prevent clearly unw~nted 
invasion of personal pnvacy 
PUBLlCCOPY 
DATE: APR 1 8 2011 
IN RE: Petitioner: 
13cneficiary: 
Office: NEBRASKA SERVICE CENTER 
u.s. l)cpartml'nt of Homeland Security 
U.S. Cili/l'll"hip anu llllilligralillil ScniCl'''' 
Adl1lini~tr<lli\,L' AppC<lh ()lliCl~ (1\1\0) 
20 Ma" .... achu"l'lh A\l' .. N.\\-',. M:-' 2()lJ(j 
Washinglon. [)(. 2().'i2l)-2()9() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Memher or the Professions Holuing an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(h)(2) 01 the Immigration 
and Nationality Act, 8 U.S.c. ~ 1153(h)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed plcase lind the decision of the Administrative Appeals Office in your casco All 01 thc documcnt> 
related to this malter have heen returned to the office that originally decided your case. Plcase he advised 
that any further inquiry that you might have concerning your case must he made to that o/lice. 
II you believe the law was inappropriately applied hy us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider ur (I motion to rCOpell. 
The specific requirements for filing such a request can be found at S C.F.R. ~ !O3.5. All motions must he 
submilled to the o[lice that originally decided your case hy filing a Form 1-2'JOB, Notice 01 Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § !03.5(a)(I)(i) requires that any motion must he 
Iiled within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~lu-Ls.~ 
/perry Rhew 
Chid, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision on multiple motions. The matter is now before the Administrative 
Appeals Office (AAO) 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. § 1IS3(b)(2), as an alien of exceptional ability. The petitioner seeks employment as 
a technical engineer. The petitioner asserts that an exemption from the requirement of a job offer, and 
thus of an alien employment certification, is in the national interest of the United States. 
Throughout the proceeding, the director has found that the petitioner does not qualifY for the 
classification sought either as an alien of exceptional ability or as a member of the professions holding 
an advanced degree. The director has further concluded that the petitioner had 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 asserts that the director erred by dismissing the petitioner's final motion as 
failing to meet the requirements of a motion. The petitioner asserts that he supported his most recent 
motion with" 17 Pages of Supporting Evidence." The most recent motion, receipt number LIN-O 11-
082-50307, consists of a 16-page statement with no supporting evidence. 
According to 8 C.F.R. § 103.S(a)(2), a motion to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. According to 8 C.F.R. § 103.5(a)(3), a motion 
to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or U.S. Citizenship 
and Immigration Services (USCIS) policy. 
The AAO recognizes that the petitioner's statement included the reasons for reconsideration and relied 
on federal case law. That said, a party seeking to reopen a proceeding bears a "heavy burden." INS v. 
Ahudu, 485 U.S. 94, 110 (1988). The petitioner in this matter tiled an initial late appeal, considered as 
a motion pursuant to 8 C.F.R. § 103.3(a)(2)(v)(B)(2), and five subsequent motions to reopen and/or 
reconsider. The director considered the evidence on the merits in all but the final motion and has even 
considered the evidence in light of a recent federal court decision raised by the petitioner in one of his 
motions. The director has even considered whether the petitioner might qualifY as a member of the 
professions holding an advanced degree even though the petitioner has never expressly advanced that 
claim. The AAO concludes that the director properly determined that the final motion did not require 
yet another decision on the merits. 
In the alternative, a review of the record as a whole reveals that the petitioner has failed to establish his 
eligibility for either the classification sought or a waiver of the alien employment certification process 
in the national interest, especially as of the initial date of filing in this matter, October 6, 2008. The 
petitioner must establish his eligibility as of that date. See 8 C.F.R. §§ 103.2(b)(I), (12); Maller of' 
Kalighak, 141&N Dec. 45, 49 (Reg'!. Comm'r. 1971). Specifically, the AAO finds that the director 
raised appropriate considerations when evaluating the evidence submitted to demonstrate exceptional 
Pagl: 5 
"equivalent"' of a bachelor's degree rather than a "foreign equivalent degree:'l 
The petitioner received a bachelor's degree in October 2008, the month he filed the petition. Thus, 
the petitioner did not have five years of post-baccalaureate experience as of the date of filing, the 
date on which he must establish his eligibility, See 8 C.F.R. §§ 103.2(b)(1). (12); Maller of 
Katilihak, 14 I&N Dec. 45. 49 (Reg'!. Comm'r. 1971). 
The petitioner submitted an August 21, 2009 "Expert Opinion Evaluation" from 
member of the faculty at the In a separate letter. 
which acknowledges credit based applicants." 
considered the petitioner's oncluding that it 
corresponded with "at least three years of academic eoursework from an accredited institution 01' 
higher education in the United States." __ en considered the petitioner's experience and 
concluded: "Considering that a Bachelor's degree followed by five years of full-time work 
experience in the field of Computer Information Systems is equivalent to a Master's degree in 
Computer Information Systems, [the petitioner] has attained the equivalent of a Master of Science in 
Computer Information Systems." ~oes not explain how he reached this conclusion "hen 
the petitioner did not, in fact, receive a bachelor's degree. Moreover, the petitioner also IJro\ided a 
contradictory evaluation from World Education Services (WES) indicating that the petitioner's 
National Diploma was equivalent to one semester of undergraduate study, that his Higher National 
Certificate was equivalent to one year of undergraduate study and that an "Academic Transcript" 
from <I {as equivalent to one semester of undergraduate study. 
As noted by the director in the February 4, 2010 decision, the WES evaluation is inconsistent with 
the evaluation from _ The petitioner acknowledged the claims of inconsistencies in his 
April 13,2010 motion but declined to address them, The director noted that the petitioner had failed 
to address these inconsistencies in the August 17, 2010 decision, although the director incorrectly 
referenced an April 17, 2009 notice as one in which he had raised these concerns, rather than the 
February 4, 2010 decision. In response to the director's August 17,2010, the petitioner notes that 
the director did not raise these concerns in the April 17, 2009 notice, Regardless, the director did 
raise these concerns that the petitioner has failed to address. 
The AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
However, where an opinion is not in accord with other information or is in any way questionable, the 
AAO is not required to accept or may give less weight to that evidence. Maller o{ Caron 
International, 19 I&N Dec. 791 (Comm'r. 1988). It is incumbent upon the petitioner to resolve an~ 
I CI K C.F.R. * 214.2(h)(4)(iii)(D)(5)(defining for purposes of a nonimmigrant visa classification. Ihe 
··equivalence to completion of a college degree" as including, in cerlain caSl:S, a specific comhinatioll of 
l:LiuCaliol1 and l:xpnkncl:). The regulatioIls pntaining to the immigrant classification sough I in this matter 
do nol contain similar language. 
Page (-) 
inconsistencies in the record by independent objective evidence. Matter of Ho. It) I&N Dec. 5ts2. 
59 I -92 (BIA 19t>tl). Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Iii. The 
petitioner has not submitted objective evidence to resolve the inconsistencies between the two 
evaluations; therefore, the AAO is precluded from accepting either of these contradictory 
evaluations. 
Even if the AAO were to accept Dr. Jelen's more generous evaluation, the regulations only allow 
consideration of experience where the alien has five ycars of post-baccalaureate experience. Dr. 
Jelen does not suggest that the petitioner has five years of post-baccalaurcate experience and the 
record docs not contain a bachelor's degree or a foreign equivalent degree that predates the petition 
by at least five years. 
In light of the above, the AAO affirms the director's determination in the August 17.2010 decision 
that the petitioner did not possess an advanced degree as of the filing date. 
B. Exceptional Ability 
The regulation at ts C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of 
which an alien must meet in order to qualify as an alien of exceptional ability in the sciences. the 
arts, or business: 
(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) Evidcnce in the form of letter(s) from current or former employer(s) showing that 
the alien has at least tcn years of full-time experience in the occupation for which he 
or she is being sought 
(e) 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 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
Page 7 
In his September 14, 2010 filing, the petitioner noted a recent federal court decision, Kazariall I'. 
USCIS, 596 F.3d 1115 (9th Cir. 2(10), and requested that the director reconsider the evidence under 
the standards set forth in the Ninth Circuit's decision. On January 3, 2011, the director issued a new 
decision using the standards set forth by the Kazarian court. On appeal, the petitioner now asserts 
that Kazariall is not relevant to the classification sought. The petitioner does not explain why he 
himself requested that the evidence be reevaluated under the standards set forth in the Ninth Circuit's 
decision. 
If a petitioner has submitted the reqUlSlte evidence, USCIS determines whether the evidence 
demonstrates "a degree of expertise significantly above that ordinarily encountered" in the arts. 
~ C.F.R. ~ 204.5(k)(2). Kazarian, 596 F.3d at 1115, sets forth a two-part approach where the 
evidence is first counted and then considered in the context of a final merits determination. While 
involving a different classification than the one at issue in this matter, both classifications require 
evidence qualifying under a specific number of evidentiary criteria. Thus, the Kllzariall court's 
reasoning is persuasive to the classification sought in this matter. The petitioner's conclusion that 
the reasoning in Kazarian cannot be applied to the classification sought is based in part on the 
assertion that "none" of the regulatory criteria for aliens of extraordinary ability arc "objecti\'e!y 
measurable." This assertion is factually incorrect. For example, the regulation at 8 c.r.R. 
~ 204.5(h)(3)(vi) requires evidence of publication of scholarly articles. As with a degree, the 
example the petitioner uses, evidence of a published article is "objectively measurable." 
In his two most recent filings, the petitioner has asserted that the director misapplied the KaZllriall 
decision by utilizing a final merits determination after counting the evidence. The petitioner stated 
that the director "incorrectly quoted (only two words were correct)" the decision in Kawrillll and 
"changed the whole meaning of the Case." The AAO has reviewed the quotations used by the 
director and compared them to the actual Kazarian decision. The director correctly quoted the 
decision with the minor exception of using the phrase "a tinal merits determination" rather than .. the 
final merits determination." Compare quote on page 3 of the director's decision with KaZllrian, 5% 
F.3d at 1121. This minor typographical error does not change "the whole meaning" of the court', 
decision. 
More than once, the Kazarian court discusses the final merits determination as the appropriate means 
to raise concerns about the nature of the evidence. For example, the court accepted that the ;\;\O's 
analysis of the strictly internal nature of the alien's judging cxperience "might be rele\ant to a linal 
merits determination." Kazarian, 596 F.3d at 1122. In addition, the court accepted that whether an 
author's articles have garnered citations in the field "might be relevant to the linal merits 
determination of whether a petitioner is at the very top of his or her tield of endeavor." Iii. at 1121. 
The petitioner asserts that the court's use of the word "might" does not suggest that USCIS can 
"expand" the requirements. Regardless. the court felt compelled to acknowledge the AA()'s 
concerns in that case and expressly stated that they were legitimate concerns but should have been 
addressed separately after counting the evidence. Significantly, the court explicitly states that 
counting the evidence is the "antecedent procedural question" USClS must determine. Webster's 
Page ~ 
New College Dictionary 48 (3'd ed. 20(8) defines antecedent as follows: "1. One that precedes. 2. An 
occurrence or event preceding another." Thus, it is clear that the court was setting forth a two-step 
procedure where the procedural question of whether the petitioner submitted evidence is only the 
"antecedent"" step preceding an evaluation of the nature of the evidence in a "Iin,d merits 
determination ... 
The final merits discussion appears in the majority opllllon and is a necessary corollary to the 
majority" s discussion of how USClS should consider evidence under the regulatory criteria. In other 
words. the court's conclusion that uscrs cannot raise certain concerns when counting the evidence 
is predicated on the understanding that uscrs can do so at a later stage. To apply only half of the 
court's procedure would etlectively negate USCIS' ahility to consider the quality of the eviuence at 
any stage. Such an outcome is untenable and would undermine the regulatory standard. 
Significantly, a recent federal court decision has acknowledged that the Kazarian court uescribed a 
two-step procedure. Rijal, 2011 WL 22067 at *2. 
An oJJi"cial academic record showing that the alien has a degree, diploma, cr'rliji"cate, or simil"r 
award from a col/ege, university, school, or other institution of learninl( relating to the area oj" 
exceptional ahility 
The petitioner received his Bachelor of Science degree from the 
••••••••• in October 2008. The petitioner submitted the degree itself, which only 
indicates the month of issue, and a September 30, 2008 email from the Office of the Registrar stating 
that the petitioner's degree award date is October 1,2008, which predates the liling of the petition. 
The petitioner also submitted two certifications from Sun Microsystems dated September and 
November 1999. The petitioner also submitted his 1987 Higher National Certificate in Engineering 
and his 19/{5 National Diploma in Electronics and Communications Engineering. As discussed 
above, the petitioner has not resolved the inconsistent evaluations regarding the equivalence of this 
education in the United States. The evaluations do not evaluate the petitioner's i(lreign education as 
more than three years of coursework. 
In light of the above, the petitioner has submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
L'videncc ill the jiJrm of letter(.\) from current or former employer(s) showing thut the alien has (/1 
leasl tell vears of jidl-time experience in the occupation for which he or she is /wing sough I 
According to the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(8). the petitioner must 
have ten years of experience in the "occupation for which he or she is being sought." On the 
petition, the petitioner indicated that the proposed position is "technical engineer." According to 
~hief Executive Officer (CEO) of Forean, Inc., the petitioner works there as a 
~d is pursuing his plans in that capacity. Thus, the petitioner must demonstrate at 
least ]() years of full-time experience as a software engineer as of October h, 200/{. 
Page 9 
that the petItIOner has been working as a software 
engineer. s a start date of October I, 2004. Thus, the petitioner had four 
years of experience as a software engineer with_ as of the date of filing. 
confirms that the petitioner worked as a 
sales executive for Morse from October 1, 1999 through March 31, 2004. While an email from 
Samantha 13aker-Odlin affirms that he petitioner "used his knowledge of GRID computing to 
successfully sell products and solutions, his occupation was that of sales executive rather than 
software engineer. Thus, this experience cannot be counted towards the necessary ten years of 
experience in the occupation of software engineer. 
On his self-serving curriculum vitae, the petitioner indicated that he worked for 
(13T) from June 1, 1990 through September 30, 1999. While the petitioner does not 
he indicates that his duties involved working with "Computer Vendors. 'Content" Suppliers. and 
J3T"s own Stafr. to design and implement this GRID Network." The record contains a local Bradford 
newspapcr article dated October 7, 1997 announcing that Bradford had entered into a £12 million 
agreement with BT to link the schools to a district-wide network "using the most alh'aneed 
communications and state-of-the-art The oner also submitted the 
acceptance letter from the 
In addition, the petitioner submitted a facsimile cover sheet dated October 6, 
to the petitioner regarding the acceptance letter. Finally, the petitioner submitted an October 13. 
1997 letter from signed on behalf of _at 13T to the petitioner expressing his thanks for the 
petitioner's ctTorts towards successfully securing the ·ontract. None of this evidence 
confirms the petitioner's dates of employment, actual duties or position title with 131'. 
The plain language of the regulation at 8 C.F.R. § 204.S(k)(3)(ii)(B) requires evidence in the form of 
letters. The regulation at 8 C.F.R. § 204.5(g)(I) provides that evidence of expcrienee "shall be in the 
form of letter(s) hom current or former employer(s)" and "shall include the name. address. and title 
of the writer and a specific description of the duties performed by the alien." The petitioner did not 
submit such evidence regarding his past employment for 131'. Thus, that experience cannot be 
considered towards the necessary 10 years of experience. 
Finally. the record contains evidence of the petitioner's military service from November 23, 1977 
through Octoher 7, 1988. Prior counsel asserted that the petitioner "was working directly at the 
forefront of the rudimentary fundamentals of GRID computing while enlisted in the British Army as 
they were only of only a fcw institutions in the world that had the technology." The unsupported 
assertions of counsel do not constitute evidence. Matter of ()iJaigiJena, 19 I&N Dec. 533. 534 n.2 
(BlA 1988); Malia oj'Lallreano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Malia oj'Ralllirez-Sallcllt'z. 17 
I&N Dec. 'i03, 'i06 (BIA 1980). The petitioner's record of service indicates that he served in the "R 
Signals" Corps. His job description is as follows: Now Designated 
Subsequently. the petitioner submitted an email li'olll 
Page 10 
with the British Army stating that the petitioner was "employed in the Army on Regular 
Service. which means [the a full time soldier." _ continues that the 
petitioner's trade when di means that lthe petitioner 
A Certificate of Serve also lists the petitioner's trade 
The Department of Labor's Occupational Outlook Handbook (OOH) provides the following: 
Electrical and electronics installers and repairers, tran;,portation equipment install, 
adjust, or maintain mobile electronic communication equipment, incl uding sound, 
sonar, security, navigation, and surveillance systems on trains, watercraft. or other 
vehicles. Electrical and electronics repairers, powerhouse, substation. and relal' 
inspect, test, maintain, or repair electrical equipment used in generating stations. 
substations, and in-service relays. These workers may be known as powerhouse 
electricians, relay technicians, or power transformer repairers. 
(Bold emphasis added.) See http://www.hls.gov/oco/ocoslil4.htm (accessed April lil, 2010 and 
incorporated into the record of proceedings). 
Separately, the OOH provides the following duties for software engineers: 
Computer sojiware engineers design and develop software. They apply the theories 
and principles of computer science and mathematical analysis to create. test, anel 
evaluate the software applicatinns and systems that make computers work. The tasks 
performed by these workers evolve quickly, reflecting changes in technology and new 
areas of specialization, as well as the changing practices of employers. 
See hlli1j/wWw.bls.gov/oc%cos303.htm (accessed April 7, 2010 and incorporated into the record or 
proceeding. 
The director accepted the petitioner's military service as qualifying experience and concluded that 
the petitioner has submitted qualifying evidence pursuant to 8 C.F.R. § 204.5(k)(3)(ii)(B). The AAO 
must withdraw this conclusion. The AAO maintains plenary power to review cases on a de //(Jl'O 
basis. So/tane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2(04). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g, Dor v. INS, 891 F.2d 997, 1002 n. ') (2d Cir. 1989). As is 
clear Irom the OOH materials quoted above, the occupation of "Radio Relay Technician" is not the 
same occupation as a software engineer. The AAO reiterates that the regulation at il C.F.R. 
§ 204.5(k)(3)(ii)(13) requires 10 years of experience "in the occupation" It)r which the petitioner 
seeks employment, in this case, software engineer. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
Page 11 
Evidence that the alien has commanded a salary, or other remllnerati(!11 fiJI' sl'rvices, which 
demollStrates exceptional ability 
The petitioner submitted a letter from 
stating "As far as I can tell from our records, [the petitioner's] gross earnings were as follows:- April 
2000 - March 2001 £286,396.39." The petitioner also submitted a January 31,2001 paystub listing 
the petitioner's gross pay year-to-date (apparently for 2000) as £264,657.93. According to an online 
currency converter, £286,396 was equivalent to $413,739 on March 2, 2001. As discussed above, 
the petitioner worked for Morse as a sales executive. The AAO will not compare the petitioner's 
wages as a sales executive with prevailing wages for software engineers. The petitioner has not 
provided wage levels for sales executives in Great Britain for comparison purposes. Thus, the 
petitioner has not documented that his remuneration is notable for a salcs executive. Moreover, even 
if they are high, the petitioner has not sufficiently explained why high wages as a sales executive arc 
indicative of exceptional ability as a software engineer. As the petitioner has not demonstrated that 
his wages arc indicative of exceptional ability as a software engineer, he has not submitted evidence 
that meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D). 
Evidence of membership in professional associations 
The petitioner submitted a screen print of his membership confirmation in the Institute of Electronics 
and Electrical Engineers (IEEE). The petitioner also submitted a "Membership Confirmation" with 
the Open Grid Forum. This confirmation is a printed document saved on the petitioner's own 
computer rather than a copy downloaded and printed from the Internet directly. The petitioner also 
submitted what appears to be his profile on the isting his "membership 
name." Once again, this information is a printed document saved on the petitioner's own computer 
rather than a copy downloaded and printed from the Internet directly. Finally, the petitioner's Army 
Form B 6320 indicates that the petitioner is "eligible for membership" in the Institution of Electrical 
and Electronic Technician Engineers, the Association of Supervisory and Executive Engineers and 
the Society of Electronic and Radio Technicians. The petitioner did not submit any cvidence that he 
actually joined these associations. 
In light of thc above, the petitioner has not submitted any evidence of membership in British 
aSSOCIatIons. Material saved to the petitioner's own computer and printed fi'om a lile on his 
computer rather than directly from the Internet has less evidentiary value than material downloadcd 
and printed directly from the Internet. Thus, the only membership the petitioner has established is 
his membership in IEEE. The plain language of the regulation at 8 C.F.R. § 204.S(k)(3)(ii)(E) 
requires evidence of membership in qualifying associations in the plural. Significantly, some of the 
regulatory criteria are worded in the singular, such as 8 C.F.R. § 204.5(k)(3)(ii)(A), (C) and (D). 
When a regulatory criterion wishes to indude the singular within the plural, it expressly does so as 
when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must bc in the form of 
"lctter(s)." Thus, USCIS must infer that the plural in the remaining regulatory criteria has meaning. In 
Page 12 
a different context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation.2 
Evidence of recognition/or achievements and significant contributions to the industry orfield by 
peers, governmental enlities, or professional or business organizations 
In response to the director's April 17, 2009 notice of intent to deny the petition, the petitioner 
submitted a newspaper article about the agreement whereby Bradford schools would receive new 
telecommunications and computer technology and letters. The AAO notes that one of the letters is 
purportedly from ne of the petitioner's professors at the State University of 
New York. While the record contains multiie letters purportedly from did not sign 
any of these letters. Rather, arne appears preprinted in a cursive font at the bottom 
of the letter. Thus, none of these letters have any evidentiary value. 
The remaining letters, which will be addressed in more detail below as they relate to the issue of the 
waiver of the alien employment certification, primarily aflirm generally that the petitioner has a 
degree of expertise significantly above that ordinarily encountered in the field. Merely repeating the 
language of the regulations does not satisfy the petitioner's burden of proof. 3 
The petitioner also submitted a June 12, 2007 letter and a May 8, 2009 email from 
Employer Services. 
Jersey. In 2009, 
be successful, our 
In 2007, the resources available to petitioner New 
;tates that "if' the petitioner's GRID computing technology "proves to 
employer (Forean Inc) may have." 
contributions to the industry or field as a whole. 
certainly find workers to fill any openings your 
does not recognize any past achievements in or 
As stated above, the record includes a letter signed on behalf of 2 thanking the petitioner 
for his efforts to with_ The letter notes that the contract is. first 
in four years with The letter does not explain how securing the contract to supply 
technology to a local school district represents an achievement in or contribution to the industry of 
software design. 
The AAO interprets "recognition" as used in 8 C.F.R. § 204.5(k)(3)(ii) to require formal recognition 
2 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
J Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aji'd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9,15 
(D.C. Dist. 1990). 
Page 13 
rather than brief letters of appreciation from employers acknowledging the petitioner's successful 
completion of assigned job duties or reference \etters written to support the visa petition. The record 
contains no such evidence. 
In light of the above, the petllloner has not submitted qualifying evidencc that mects the plain 
language requirements of 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In light of the above, the petitioner has not submitted evidence that qualifies under three of the 
evidentiary criteria. Nevertheless, the AAO will next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated that the 
beneficiary has --a degree of expertise significantly above that ordinarily cncountered'" X CI·.R. 
9 204 .5(k)(2). 
Section 203(b)(2)(C) of the Act provides that the possession of a degree, diploma, certificate or 
similar award from a college, university school or other institution of \earning or a license to practice 
or certification for a particular profession or occupation shall not by itself be considered sufficient 
evidence of exceptional ability. Thus, in a final merits determination, USCIS must determine 
whether the bencticiary's degrees and other academic credentials are indicative of or consistent with 
a degree of expertise significantly above that ordinarily encountered. 
The OOH contains information on the general education held by software engllleers. The OOH 
states: 
A bachelor's degree commonly is required for software cngineering jobs. although a 
master's degree is preferred for some positions. A bachelor's degree also is required 
for many computer programming jobs, although a 2-year degree or certificate may be 
adequate in some cases. Employers favor applicants who already have relevant skills 
and experience. Workers who keep up to date with the latest technology usually have 
good opportunities for advancement. 
l~dllcation and training. For software engineering positions, most employers prefer 
applicants who have at least a bachelor's degree and broad knowledge of. and 
experience with, a variety of computer systems and technologies. The usual college 
majors for applications software engineers are computer science, software 
engineering, or mathematics. Systems software engineers often study compu ter 
science or computer information systems. Graduate degrees are preferred for some of 
the more complex jobs. 
See DlJp:L,vww.hls.gov/oc%cos303.htm (accessed April 7, 2011 and incorporated into the record of 
proceedings. 
In addition, O*NET Online indicates that 23 percent of respondents in the occupation indicated that 
they have a Master's degree while 54 percent of respondents indicated that they have a bachelor's 
degree, Sec http://w\\.-.!Y_.onetonline.Ol.gllink/.summarv/I~-1032.()O#E_<;l!lS-.ltion (accessed April IS. 
20 II and incorporated into the record of proceeding. 
In light of the above, the petitioner's education does not itself appear indicative of or consistent with 
a degree of expertise significantly above that ordinarily encountered in the field. 
Even if the AAO were to conclude that the petitioner is a member of OGF and the World 
Community Grid and, thus, submitted qualifying evidence pursuant to 8 C.F.R. § 204.5l)k)(3)(ii)(E). 
thc petitioncr has not documented the membership requirements of IEEE, OGF and the World 
Community Grid. Accordingly, it is not possible to determine whether or not these memberships arc 
indicative of or consistent with a degree of expertise significantly above that ordinarily encountered 
in the field. If the associations merely require education and/or employment in the field, they cannot 
establish any unusual expertise beyond that normally encountered by those working in the field. 
Even if the AAO were to conclude that the petitioner has the necessary experience such that he 
technically meets the requirements at 8 C.F.R. § 204.5(k)(3)(ii)(B), as discussed above. much of that 
experience is as a radio rclay technician and sales executive. The petitioner has not persuasively 
demonstrated how this experience, which is minimally relevant to his current plans, demonstrates his 
degree of expertise significantly above that ordinarily encountered among software engineers. While 
the petitioner's ycars of experience is probably his strongest evidence, that evidence alone cannot 
demonstrate eligibility as an alien of exceptional ability. S C.F.R. § 204.5(k)(3)(ii). 
In light of the above, the AAO affirms the director's conclusion that the pditioner has not 
documented his eligibility for the classification sought. Nevertheless, in the interest of thoroughness. 
the AAO will also address whether the petitioner has documented that a waiver or the alien 
employment certification process, a process the petitioner'S employer has successfully completed. is 
warranted in the national interest. 
II. National Interest Waiver 
Neither the statute nor pertinent regulations define the tenn "national interest.'· Additionally. Congress 
did not provide a specific definition of the phrase. "in the national interest." The Committee on the 
.I udieiary 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, lOIst Cong., 1st Sess., II (il)t)l)). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1'll)1J 
(IMMACT), published at 56 Fed. Reg. 60Sl)7, 60l)OO (Nov. 2l), I l)91), states, in pertinent part: 
Page 15 
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. 
The petitioner has repeatedly asserted that he "meets" several of the "USCIS Website Requirements" 
for the waiver of the alien employment certification. As explained by the director these "requirements" 
derive trom an unpublished decision. The director correctly noted while 8 C.F.R. § 1 03.3(c) provides 
that AAO precedent decisions are binding on all USC IS employees in the administration of the Act. 
unpublished decisions are not similarly binding. The petitioner continues to cite these 
"requirements" on appeal. 
The only place the AAO was able to discover these "requirements" is a guide entitled "Helping a 
Foreign National Employee Get Permanent Resident Status." The guide does not suggest that these 
requirements are the only requirements for the waiver. Rather, it states: "While there are other 
requirements, a petitioner who requests a National Interest Waiver should be able to establish that 
employment of the foreign national will fulfill at least one of the following criteria." (Emphasis 
added.) Regardless, information on agency web sites does not constitute final agency action 
reviewable under the Administrative Procedure Act and does not create legally enforceable 
entitlements. See Air Brake Systems, Inc. v. Mineta, 357 F.3d 632, 646 (6th Cir. 2004). 
As repeatedly stated by the director, the relevant authority in this matter is Matter of" New York State 
Dep't. of" Transp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter "NYSDOT"). That 
decision is a published designated precedent that is binding on all USCIS employees in the 
administration of the Act pursuant to 8 C.F.R. § 103.3(c). To date, neither Congress nor any other 
competent authority has overturned the precedent decision 4 
NYSDOT, 22 I&N Dec. at 217-18 has set forth several factors that USCIS must consider 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. [d. at 217. Next, the petitioner must show that the 
proposed benefit will be national in scope. Id. 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. Id. at 217-18. 
4 Congress has amended the Act to facilitate waivers for certain physicians. This amendment demonstrates 
Congress' willingness to modify the national interest waiver statute in response to Malter of New York State 
Dept. of" Tramportation; the narrow focus of the amendment implies (if only by omission) that Congress, thus 
far, has seen no need to modifY the statute further in response to the precedent decision. See Talwar v. INS, No. 
00 CIY. 1166 JSM, 2001 WL 767018 (S.D.N.Y, July 9, 200 I) (upholding NYSDOT, 22 I&N Dec. at 215 as a 
val id precedent. 
Page 1 () 
It must be noted that, 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 Jd. at 219. 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, Jd. 
The AAO concurs with the director that the petitioner works in an area of intrinsic merit, GRID 
programming, The director then concluded that the proposed benefits of the petitioner's work would 
not be national in scope. Specifically, the director concluded that the petitioner's plans to train 
Veterans and the unemployed to work on GRID computing would only impact New Jersey and 
Pennsylvania. On appeal, the petitioner notes that NYSDOT, 22 I&N Dec. at 217, involved an 
engineer working on a local bridge but the benefits were deemed to be national in scope becausc 
New York's bridges and roads connect the state to the national transportation system. The petitioner 
explains that while his project will begin in New Jersey and Pennsylvania, it will expand nationally 
and bring outsourced jobs back to the United States. A September 24, 200'J cmail from the 
petitioner to Citi, a potential client, indicates that the petitioner was considering moving the project 
from New Jersey to Philadelphia rather than expanding a successful New Jersey program to 
Philadelphia. 
As the petitioner criticizes the director for failing to reference the language in NYS[)()T on the issue 
of national scope, the AAO reproduces that language here: 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated al the 
national level as to be negligible. Similarly, while education is in the national 
interest, Ihe impact of a single schoolteacher in one elementary school would not be in 
the national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(13) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sufficiently in 
the national interest for purposes of this provision of the Act. 
Id. at 217, n.3. 
Ultimately, the petitioner proposes to provide a technological service to customers and train U.S. 
workers to perform the necessary duties such that the customers will reduce their outsourcing and 
hire U,S. workers. He plans to expand this program nationally, The test for this factor is whether the 
proposed benefits would be national in scope. That said, highly speCUlative proposals theorizing 
how an alien in an occupation that inherently produces local benefits might potentially provide a 
national benefit are not persuasive, Unlike bridges that are already connected to the national 
Page 17 
transportation system, the petitioner proposes to start a new national program, beginning locally. llis 
assertion that clients will adopt his technology and hire the workers he trains is highly speCUlative as 
is his assertion that there will be a market nationally. Without an existing successful model uf a 
similar project that has produced national benefits, it is dif1icult to conclude that the petitioner's plan 
is likely to produce benefits that are national in scope. Even if the AAO were to conclude that 
merely proposing a program that could conceivable expand nationally was sufficient to establish the 
national scope of the proposed benefits, the petitioner's track record in this area docs not warrant a 
waiver of the alien employment certification process for the reasons discussed below. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. The merits of retraining 
U.S. workers and reducing outsourcing are not in contention. Eligibility for the waiver, however, 
must ultimately rest with the alien's own qualitications rather than with the position sought and the 
merits of the proposal. In other words, that the AAO generally does not accept the argument that a 
given project is so important that any alien qualified to work on this project must also qualify for a 
national interest waiver. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the 
alien possesses usetul skills, or a "unique background." 
As noted by the director, special or unusual knowledge or training does not inherently meet the 
national interest threshold. On an earlier motion, the petitioner attempts to rebut this concern by 
relying on Schedule A, Group II designation pursuant to 20 C.F.R. § 656.15, which allows all 
emp/over to file application for labor certification with USCIS rather than the Department of Labor 
(DOL). Specifically, the petitioner states that he is an alien of exceptional ability and meets the other 
requirements of Schedule A, Group II designation. First, as discussed above, the retitioner has not 
demonstrated that he is an alien of exceptional ability pursuant to the requirements set forth ti C.F.R. 
§ 204.5(k)(3)(ii). Regardless, the DOL regulations define "exceptional ability" far different than the 
USCIS regulations. Specifically, 20 C.F.R. § 656.l5(d)(I) defines "exceptional ahility" as I()llows: 
An emrloyer seeking labor certification on behalf of an alien to be employed as an 
alien of exceptional ability in the sciences or arts (excluding those in the performing 
arts) must file documentary evidence showing the widespread acc/aim and 
illiemational reco[;llitioll accorded the alien by recognized experts in the alien's lield: 
and documentation showing the alien's work in that tield during the past year did, and 
the alien's intended work in the United States will, require exceptional ability. 
(Emphasis added.) The regulation then provides seven criteria of which an alien must meet at least 
two. These criteria are unrelated to the criteria set forth at 8 C.F.R. § 204.5(k)(3)(ii), discussed 
above. While admittedly confusing, the fact that both DOL and US CIS regulations use the rhrasc 
"excertional abi lity" does not mean that the classification set forth at section 203(b )(2) of the Act 
and Schedule A, Group II designation as discussed at 20 C.F.R. § 65/i.15(c1) arc synonymous with 
each other. 
The petitioner has not explained how he has submitted the requISIte evidence under 20 C.F.R. 
* 656.15(d)(1)(i)-(vii). Even if he had, the petitioner did not initially claim to be seeking Schedule 
A, Group II designation and is barred from advancing that claim as he filed the petition as a sclf­
petitioner. Moreover, he has not explained how eligibility for that designation is relevant to a wail'('/" 
of the alien employment certification process, which includes Schedule A, Group II designation. 
Significantly, even if the petitioner had established exceptional ability pursuant to ~ C.F.R. 
§ 204.5(k)(3)(ii), that classification normally requires an approved alien employment certification. 
Section 203(b)(2). Thus, by statute, "exceptional ability" is not. by itself sufticient cause Il)r a 
national interest waiver. NYSDOT, 22 I&N Dec. at 218. Thus, the henefit which the alien present> 
to her tield of endeavor must greatly exceed the "achievements and significant contrihutions" 
contemplated for that classification. Id; see also id. at 222. 
As also noted by the director, the issue of whether similarly-trained workers are available in thc 
United States is an issue under the jurisdiction of DOL. Id. at 221. On appeal. the petitioner 
reiterates his assertion that his approved labor certitication in a lesser classification "conlirms that 
there is not 'an available U.S. worker having the same minimum qualifications ... · (Emphasis in 
original.) The petitioner also refers to the number of H-IB nonimmigrant visas issued approvcd 
annually as evidence that there is a shortage in his occupation. 
The petitioner seriously misunderstands the final factor set forth in NYSDOT. 22 I&N Dec. at 217-
18. The issue of whether a shortage issue exists falls under the jurisdiction of DOL. Id. at 221: 
section 212(a)(5)(A) of the Act, 8 U.s.c. § IIS2(a)(5)(A). The petitioner seeks a waiver of that 
process in the national interest. If a shortage exists such that the petitioner's employer can obtain a 
labor certification from DOL, a waiver of that process is not warranted in the national interest. As 
stated in NYSD()T. 22 I&N Dec. at 223, nothing in the legislative history suggests that the natioll<iI 
interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the 
inconvenience of the labor certification process, 
Significantly, NYSD()T. 22 I&N Dec. at 218 requires a showing that the petitioner will benefit the 
national interest to a greater extent than an available U.S. worker with the same minimum 
qualifications. This is a far different question from whether there are. in fact, available U.s. workers 
with the same minimum qualifications. US CIS does not have jurisdiction to even consider that 
question. 
Ultimately, at issue is whether this petitioner's contributions in the tield are of such unusual 
significance that the petitioner merits the special benefit of a national interest waiver, over and abO\e 
the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden 
of proof. A petitioner must demonstrate a past history of achievement with some degree of innuence 
on the field as a whole. Id. at 219. n. 6. In evaluating the petitioner's achievements. an original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221. n. 7. 
Before considering the evidence, the petitioner must establish his eligibility as of the date of filing, 
October 6, 2008, See 8 C.ER, §§ 103.2(b)(I), (12); Matter of KatiKbak, 14 I&N Dec. 45. 49 (Reg·1. 
Comm·r. 1971). In this matter, he must demonstrate his track record of success with some degree of 
influence on the field as a whole as of that date. All of the case law on this issue focuses on thc 
policy of preventing petitioners from securing a priority date in the hope that they will subsequently 
be able to demonstrate eligibility. Matter 0/ WinK's Tea House. 16 I&N Dec. 158, 160 (Reg·1. 
Comm·r. 1977): Matter of KatiKbak, 14 I&N Dec. at 49; see also Matter of1zlImmi, 22 I&N Dec. 16'), 
175-76 (Comm·r. 1998) (citing Matter of Bardollille, 18 I&N Dec. 114 (BiA 1')81) for the 
proposition that USCIS cannot "consider facts that come into being only subsequent to thc tiling or a 
petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the hope that 
his as of yet unrealized project will subsequently prove influential. Ultimately. in order to be 
meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of 
the date it was filed. ()gllndipe v. Mukasey, 541 F.3d 257, 261 (4'h Cir. 2(08). 
Prior counsel acknowledged that the petitioner "does not havc a past record or implemcnting large 
GRlI) computing solutions in the U.S." but asserts that the petitioner "does have a provcn record of 
solutions in the United Kingdom while he was employed at 
Prior counsel asserted that the petitioner designed and implemented "Campus 
World," which involved 32,000 schools and cost $18 million to implement. As stated abovc. the 
unsupported assertions of counsel do not constitute evidence. Matter of Obllighcllll, I') I&N Dec. at 
S34 n.2; Mutter oj'/,llllreaI10, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sallchl'z, 17 I&N Dec. at SOh. 
The evidence contradicts the above assertions. Specifically, the record contains an October 7, 1997 
article in the Telegraph and Argus discussing thc implementation of new technology at Bradford 
schools. The article describes the projects as follows: "Schools are to be connected to a district-wide 
network using the most advanced communications technology and state-of-the-art computers." 
Significantly, the article continues: 
And today's announcement coincided with unvciling with 
,======== a £100 million boost to the Govcrnment's National 
I heme to link Britain's 32,000 schools to the internet by the year 
2002. 
The article makes clear that while the deal with oincided with an announced plan to 
link all of Britain's 32,000 schools, the BT deal only concerned Bradford schools. BT's contribution 
was projected to be its Intranet Service but other companies, such as Research Machines were also 
involved. Thus. while the article confirms that the project would cost a total £ 12 million, HI's portion 
would be necessarily less than that. As stated above, a letter on behalf of_lcknowlcdges thc 
petitioner's efforts towards securing the deal for BT but does not discuss his exact rok. Thus. the 
pctitioner has not documented his role with this project. Moreover, the petitioner has not documented 
the ultimatc success of the project. 
In light of the above, the record does not, in fact, document the petitioner's track record of success with 
some degree of influence over the field as a whole in Great Britain, 
As stated above, thc record contains correspondence from 
In his first letter, 
"""IHe in New Jcrsey that may assist 
in recruiting, training and retaining 1.T. professionals in New Jersey." Providing a list of available 
programs to a company seeking to create jobs does no~t the company has already,' proved 
successful. As stated above, in his May 8, 2009 email_opines that the petitioner's project 
sounds exciting and new and offers assistance "ifit successful." Thus. as ofl'v1av 8. 2009. sevcn 
months alier tiling the petition, the petitioner's had yet to prove successful. 
__ a Labor Services Representative at the New York Department of Labor. ~ ....... . 
states that, in response to the petitioner's request, she is advising that prO\idc 
"undercmployed. under qualified or minimally qualified persons for your req 100 IT job 
openings." The emaiL dated May 11,2009, does not establish that the petitioner had a track record of 
success training employees for GRID positions as of the date of filing. 
A purported letter from ••••••• ,. .................. IllI!II •••••• 
Education at the New Jersey Institute of Techno~~ms that the institute would be pleased to 
help the petitioner train or retrain employees. As~id not sign the letter. it has no evidentiary 
value. 
The record contains a letter dated January 29, 2010 from 'ng that_ 
Inc. would begin in Philadelphia under a 
a January 21, 2010 email from 
ith the 
confirming to the petitioner that the center grant to wo 
Inc. This cvidence postdates the filing of the petition by almost two years and cannot be considered 
evidence of the petitioner's success prior to that date. See t; CF.R. ~§ 103.2(b)( I). (12); Matter of' 
Katighak, 14 I&N Dec. at 49. Moreover, as stated above, the petitioner's project in Philadelphia is not 
an expansion of his work in New Jersey; rather, he moved thc project from New Jersey to Philadelphia. 
pfilis(~s the petitioner's professional attitude and 
characterizes the petitioner as a "trusted subject matter expert in this technology lield." _loes 
not confirm that~as or would be a client of Forean, Inc. 
,en" .. lp, a lengthy letter in support of the petition. 
explains his own expertise and provides background information on GridGain. 
becoming f~lmiliar with the petitioner's~omputing solution in the slimmer of 100X. 
asserts that the petitioner prepared a ~ demonstrate to Citigroup in August of 2()()~. 
asserts that ~as interested but would not commit unless the petitioner becomes a lawful 
permanent r~ally, _onfirms that~ould assist providing GRID training 
for under employed or unemployed individuals. _ does not explain how the petitioner has 
already developed a track record of success developing _ solutions that have been applied 
successfully by clients. 
The record also contains general letters. 
confirms that he has known and worked with the petitioner since 2002. concludes that the 
petitioner's implementation of Catbird's security solution with the petitioner's GRID computing 
solution "demonstrates an understanding of GRID computing which is significantly above others in 
the computing industry with comparable academic or professional experience:' ~ocs nol 
explain how the petitioner's implementation of Catbird's technology to the petitioner's _ 
computing is an achievement in or contribution to the industry or field as a whole. The petitIOner 
also submitted a similar letter from 
merely asserts that the petitioner has 
skills above the average for the holder of a baccalaureate. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self~serving" See, e.g., Matter of S-A-, 22 I&N Dec. 1328. 1332 (BIA 20()O) 
(citing cases). The Board also held, however: "[w]e not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may. in its discretion, use as advisory opinions statements submitted as expert testimony. See Maller 
oj' Caron International, 19 I&N Dec. 791, 795 (Comm·r. 1988). However, USC IS is ultimately 
responsible for making the tinal determination regarding an alien's eligibility for the benefit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BfA 200K) (noting that 
expert opinion testimony does not purport to be evidence as to ·'face). USCIS Illay even give less 
weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id. at 795; see also Matter ofSoffici, 22 I&N Dec. 158. 165 (Comm·r. 199B) (citing 
Matll'!' oj'Treas[{re CTafi of Calif ami a, 141&N Dec. 190 (Reg'!. Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of how the petitioner's progral11 may 
have potential benefits, without specifically identify innovations and providing specific examples of 
how those innovations have influenced the field. Merely repeating the legal standards docs not 
Page 22 
satisfy the petitioner's burden of proor.O The petitioner also failed to submit corroborating evidence 
in existence prior to the preparation of the petition, which could have bolstered the weight of the 
reference letters. 
Ultimately, the petitioner worked on an Intranet project for a school district in the late 1 99()" s and has 
documented no subsequent achievements. While the petitioner's proposaL if successfuL would no 
doubt be of value, it would be far too speculative to waive the alien employment certification process 
for every proposal from an alien with no proven track record of successfully completing a similar 
proposal. 
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 alien employment certification will be in 
the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 I of the Act. 
H U.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
'Fcdill Bros. Co., Ltd. v. Sliva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 90S F. 2d 41 (2d. Cir. 1990): 
Avyr Associatn, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need nol accepl 
primarily conclusory assertions. 1756, Inc. v. The AI/orney Gelleral of the U"ited Slates, 745 F. Supp. Y, 15 
(D.C. Dis!. I Y90).