dismissed EB-2 NIW Case: Computer Science / Cybersecurity

(b)(6)
U.S. Department ofHomehmd Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER FILE: 
INRE : Petitioner: 
Beneficiary: 
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 Jaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current Jaw 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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)j OUNJnr}.;J 
~ Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO dismissed the 
petitioner's appeal. Subsequently, the petitioner filed a motion to reconsider. The AAO dismissed the 
motion to reconsider and affirmed the appellate decision. The matter is now before the AAO on a 
second motion to reconsider. The motion will be dismissed, the previous decision of the AAO will 
be affirmed, and the petition will remain denied. 
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 software engineer specializing in information systems 
security and cybersecurity. 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 had not established that an exemption from the requirement 
of a job offer would be in the national interest of the United States. The AAO upheld the director's 
findings on appeal and again on motion. 
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 (USCIS) policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider 
contests the correctness of the original decision based on the previous factual record, as opposed to a 
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See 
Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). A motion that does not meet applicable 
requirements shall be dismissed. 8 C.P.R.§ 103.5(a)(4). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Fmther, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. !d. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. /d. at 60. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217-18 (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 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. 
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NON-PRECEDENT DECISION 
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The AAO previously found that the petitioner's work is in an area of intrinsic merit and that the 
proposed benefits of his work would be national in scope. However, the AAO determined that the 
petitioner had failed to establish that he fulfilled the third eligibility factor set forth in NYSDOT. The 
AAO stated: 
In this instance, the pet1t10ner has barely documented his past employment, let alone 
established that his past contributions set him apart from others in the field to an extent that 
would warrant the ... benefit of an exemption from the job offer requirement that, by statute, 
normally applies to the classification he seeks. 
In the December 28, 2012 dismissal of the petitioner's motion, the AAO stated that the petitioner 
had failed to submit letters from employers detailing his work experience and past contributions in the 
field. The decision also indicated that the record did not include documentary evidence showing that 
the petitioner's work to develop security software and related products set him apart from others in the 
information systems security and cybersecurity fields. The documentation and arguments presented on 
motion failed to demonstrate a past history of achievement with some degree of influence on the field 
as a whole. See NYSDOT at 219, n. 6. In addition, the petitioner failed to submit an updated, fully 
executed Form ETA-750B, in duplicate, at the time of filing as required by the regulation at 8 C.P.R. 
§ 204.5(k)(4)(ii). The AAO concluded that the petitioner's motion was unsupported by any 
persuasive legal argument, precedent decisions, or other comparable evidence to establish that the 
AAO's appellate decision was based on an incorrect application of law or USCIS policy. 
In his current motion, the petitioner states: 
The minimum qualifications for work in the field of Information/cybersecurity is a 
Bachelor's Degree in a related field typically computer science, information systems or 
electrical/ electronic engineering. 
* * * 
The petitioner has provided evidence to show he has worked at innovative startups 
represented by the pioneer vendor of IPSec VPN appliances (used to 
establish encrypted tunnels for secure communications) and 
(developer of the first identity based Security Appliance) who delivered cutting edge 
solutions that extended the frontiers of cybersecurity and also provided a copy of a highly 
complementary performance review at which affirmed his 
performance as being far above average. 
The petitioner also holds an advanced degree (Masters) in Electrical Engineering which is 
higher the minimum requirement for employment in this field. 
The petitioner comments on his work experience and states that his Master's degree in Electrical 
Engineering is higher than the minimum requirement for employment in his field. The petitioner's 
advanced degree, however, is not the issue in this matter. The director has already determined that 
the petitioner qualifies for classification as a member of the professions holding an advanced degree. 
(b)(6)
NON-PRECEDENT DECISION 
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This issue in this matter is whether the petitioner's past record of achievement is at a level that 
would justify a waiver of the job offer requirement. Further, academic degrees and experience are 
elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, in tum, is not self-evident grounds 
for the national interest waiver. See section 203(b )(2)(A) of the Act. The plain language of section 
203(b )(2)(A) of the Act indicates that aliens of exceptional ability and advanced degree 
professionals are subject to the job offer requirement (including alien employment certification). 
Moreover, it cannot suffice for the petitioner to state that he possesses useful skills, or a "unique 
background." Special or unusual knowledge or training does not inherently meet the national 
interest threshold. The issue of whether similarly-trained workers are available in the United States 
is an issue under the jurisdiction of the Department of Labor. NYSDOT at 221. In all cases the 
petitioner must demonstrate specific prior achievements that establish the alien's ability to benefit 
the national interest. !d. at 219, n.6. 
In addition, the petitioner points to his submission of "a highly complementary performance review 
at which affirmed his performance as being far above average," but there is no 
documentary evidence indicating that he has impacted the field to a substantially greater degree than 
other similary qualified software engineers or cybersecurity specialists. Moreover, there is no 
evidence showing that the petitioner's specific work has had significant impact outside of the 
companies where he has worked. 
The petitioner further states: 
The petitioner has provided evidence to show he is able to serve the national interest better 
than theinational interest of securing cyberspace identified in an executive order issued by the 
president of the United States of America which specifically identified Identity Management 
and Encryption as critical technologies for assuring the security of the nation's infrastructure 
and underlined the crucial role innovation by industry plays in development of solutions to 
the rapidly evolving threat landscape in the field. 
The petitioner comments on an executive order "which specifically identified Identity Management 
and Encryption as critical technologies for assuring the security of the nation's infrastructure," but 
general assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. NYSDOT at 220. As noted in the AAO's two prior 
decisions, USCIS grants national interest waivers on a case-by-case basis, rather than establishing 
blanket waivers for entire fields of specialization. !d. at 217. 
The petitioner again asserts that he meets the preponderance of evidence standard and points to 
Kazarian v. US CIS, 580 F. 3d 1030 (9th Cir. 2009) aff' din part 596 F.3d 1115 (9th Cir. 2010) in which 
the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.P.R. § 204.5(h)(3)(vi). 
The AAO's previous decisions, however, did not unilaterally impose any novel substantive or 
evidentiary requirements beyond those set forth in the regulations. Rather, the AAO relied on 
relevant, published, standing precedent by following the guidelines set forth in NYSDOT. As 
indicated in its prior decision, the AAO agrees that the standard of proof is preponderance of the 
(b)(6)
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evidence. The "preponderance of the evidence" standard, however, does not relieve the petitioner 
from satisfying the eligibility factors set forth in NYSDOT. In the present matter, the documentation 
submitted by the petitioner fails to demonstrate by a preponderance of the evidence that he will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. 
The petitioner has not established that the AAO's previous decision was based on an inconect 
application of law or Service policy, or that the decision was inconect based on the evidence of record 
at the time of the decision. Therefore, the motion does not meet the requirements of a motion to 
reconsider, and the motion must be dismissed. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous 
decisions of the director and the AAO will not be disturbed. 
ORDER: The motion to reconsider is dismissed, the AAO's December 28, 2012 decision is 
affirmed, and the petition remains denied.