dismissed EB-2 NIW Case: Computer Science

(b)(6)
DATE: JUN Q 5 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: 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 
FILE: 
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: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
.7 Ron Rosen be · 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us on appeal. We will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a computer network professor. Since 2005, the petitioner had been an 
assistant professor at in Madison, Wisconsin; the university promoted him to 
associate professor after he file the petition. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certification, is in the national interest of the United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief, witness letters, and information about his duties. 
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 director did not dispute that the petitioner qualifies as a member of the professions ~olding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. ~9, 1991), 
states: ' 
The Service [now U.S. Citizenship and Immigration Services (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. 
In reNew York State Dep't 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 alien seeks employment in an area of 
substantial intrinsic merit. I d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. 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. 
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. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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. !d. 
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. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on June 17, 2013. On Part 
6, line 3 of the petition form, the petitioner stated that he intends to "[t]each undergraduate students 
in the field of computer networks & security technologies. Design and implement curriculum for a 
university in the US." 
The petitioner documented his own prior education up to the ma~ter' ~ de~Lree level, and professional 
certifications from computer-related companies such as These documents, by 
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themselves, demonstrate the petitioner's professional competence, but do not distinguish him from 
other professionals in his field. 
To provide additional perspective on his qualifications, the petitioner submitted several witness 
letters. Many of these letters provide general praise for the petitioner's skills and abilities, without 
identifying any specific contributions through which the IJetitioner has influenced his field. For 
example, associate dean (emeritus) at the who 
has "known [the petitioner] for over twenty years," stated that the petitioner's "performance as a 
teacher has been outstanding .... He always sets a high standard for himself and performs at that 
level." The remaining witnesses are all instructors or the petitioner's former students at 
such as associate professor at who stated that the 
petitioner's "commitment is obvious when he develops his classes, implements his labs, and 
instructs his students. He is admired by his students for both his technical ability and fun-loving 
nature that he utilizes to teach them." 
The most soecific oraise for the petitioner comes from another associate professor at 
who stated that the petitioner "has served as the main resourc~ for open 
source Linux administration in ... [The petitioner] is one of those go-to guys 
not only to the students but also his coworkers whenever they have a tough Linux or Virtualization 
related problem." The witnesses praised the petitioner's personal character and indicated that the 
students and administration of depend on his expertise, but they did not did not 
claim or establish that the petitioner's work has influenced his field as a whole. 
The director issued a request for evidence on August 29, 2013, instructing the petitioner to establish 
that the benefit from his proposed employment would be national in scope, and that he has had a 
degree of influence on his field that would justify the waiver. In response, the petitioner stated: 
My continued research and testing make me standout amongst my peers in the area of 
computer security, Linux administration, and Virtualization .... 
My dedication and passion for education have led me to develop tools, processes, and 
outlines for efficient delivery of Computer and Information Technology courses with 
no loss of real world experience for students .... My in-depth knowledge in security 
provides a foundation for me to innovatively come up with real world case projects 
worthy of studying and implementation. For example, I revamped a course to be a 
culmination and final test of all skills learned in the pursuit [of] Computer and 
Information Technology degrees in the area of networking and security. I have been 
very instrumental for to be known as a place to go for recruiting 
students with knowledge in Unix or Linux systems due to my passionate mix of both 
Windows and Open Source worlds in building student skill levels. in Dubuque, 
Iowa actively recruits graduates from for their operations due to 
the approach I introduced. 
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In the letter excerpted above, the petitioner described his work at but did not 
show that he stands out from others in his occupation to an extent that would justify a waiver of the 
job offer requirement that, by statute, normally applies to the classification he seeks. 
In 2007, (before becoming awarded the petitioner the 
"President's Award" for "Instructor of the Year," as well as "1
51 
Runner-Up" for "Teacher of the 
Year." Under the US CIS regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F), recognition of this type can 
provide partial support for a claim of exceptional ability, but, as explained previously, exceptional 
ability (a degree of expertise significantly above that normally encountered) is not grounds for 
waiving the job offer requirement, and recognition from one's own employer does not demonstrate 
impact or influence beyond that employer. The petitioner asserted that 's 
graduates disperse throughout the United States, but this does not demonstrate that the petitioner's 
own work produces benefits that are national in scope. 
" an article in the March 2006 issue of 
includes quotations from the petitioner. The name of the magazine and advertisements for local 
businesses indicate that is a local or regional publication. The article does not 
indicate that the petitioner has had any particular impact on computer network education. 
The petitioner submitted three further letters, all from witnesses at 
campus. Like the earlier letters, these letters contain general praise for the petitioner's work at the 
university, along with additional details about his specific responsibilities, but no indication that the 
petitioner's contributions go beyond being a dedicated and competent teacher. Section 10l(a)(32) of 
the Act indicates that college instructors are members of the professions, and section 203(b)(2)(A) of 
the Act holds professionals to the job offer requirement. Therefore, the petitioner's status as a 
qualified instructor at a postsecondary institution does not establish or imply eligibility for a waiver 
of that requirement. 
The director denied the petition on December 10, 2013, stating that, although "the alien petitioner is 
a well-educated individual of high character" whose "services have been of substantial use to his 
current employer," the petitioner has not established the national scope or influence on the field 
required by the NYSDOT guidelines. 
On appeal, the petitioner asserts that his contributions have received "national coverage," because 
is a nationwide university" and the petitioner "has taught or developed courses 
across various campuses." New witness letters and statements, all from faculty 
and students, praise the petitioner's skills and achievements as an instructor. The petitioner's direct 
impact, however, remains confined to the system. The record does not show that 
the petitioner has shaped the way computer science courses are taught outside of that university, or 
identify any influential, original contributions the petitioner has made to his field. 
One witness, 
at 
chair of the Computer Science and Information Technology Department 
s campus in Atlanta, Georgia, states that a looming shortage of computer 
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security professionals "has been recognized by well-known computer organizations ... [and] 
governments ... as a national interest to consider," but the record does not show that the petitioner's 
actions have lessened or averted this potential shortage. The assertion that the United States needs to 
train more computer security professionals is a general claim about the importance of the petitioner's 
occupation; it does not explain why the petitioner should be singled out for special benefits such as 
an exemption from the statutory job offer requirement. 
The petitioner has established that he is a well-regarded instructor at but 
university-level instructors are not, as a class, collectively exempt from the job offer requirement. 
Therefore, the petitioner must establish why he, individually, should receive a waiver of a statutory 
requirement that applies to others in his occupation. The petitioner provides additional details about 
his work at but the petitioner does not establish eligibility by describing his 
work. The petitioner acknowledges that he "has not published a paper in the Information 
Technology field," but asserts that he helped to coordinate a professional conference and has "[l]ed 
and guided students and companies across various industries." The petitioner asserts that he "has 
served and will serve the national interest to a substantially greater degree than several U.S. workers 
having the same minimum qualifications," but he submits no objective evidence to support this 
claim. Going on record without 
supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner has not established a 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 his influence be national in scope. NYSDOT, 
22 I&N Dec. 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 alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver 
of the requirement of an approved labor certification will be in the national interest of the United States. 
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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.