dismissed EB-2 NIW Case: Economics

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
FILE: Office: TEXAS SERVICE CENTER Date: 
EAC 07 255 52182 MAR 2 6 2010 
IN RE: 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. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner, part of a Christian liberal arts college, seeks to classify the beneficiary pursuant to 
section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 1 53(b)(2), as a member 
of the professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a 
professor of economics. The petitioner asserts that an exemption from the requirement of a job offer, 
and thus of a labor certification, is in the national interest of the United States. The director found that 
the beneficiary qualifies for classification as a member of the professions holding an advanced degree, 
but that the petitioner has not established that an exemption from the requirement of a job offer would 
be in the national interest of the United States. 
On appeal, the petitioner submits evidence intended to support the waiver claim, while also claiming 
that it had not intended to seek the waiver. 
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 holding 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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 21 5 (Commr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown 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 U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established 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 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. 
We also note that the regulation at 8 C.F.R. 5 204.5(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 offedlabor 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. 
We note that, to apply for the waiver, the USCIS regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires the 
petitioner to submit Form ETA-750B (or the corresponding sections of the more recent ETA Form 
9089) in duplicate. The petitioner has not submitted this required document. Therefore, the 
petitioner has not properly applied for the waiver. 
The petitioner filed the petition on July 7, 2007. the petitioner's coordinator of 
faculty services, signed the Form 1-140 petition. In an accompanying letter dated September 17,2006, 
stated: 
It is with pleasure that I write this letter in support of [the beneficiary] to obtain a 
National Interest Waiver. . . . He is enthusiastic and tireless in teaching our students in 
the School of Professional and Adult Studies (SPAS). He shares his extensive 
knowledge in a professional, interesting manner, and his enthusiasm for his subject is 
evident in the classroom. 
. . . I have found his work to be thorough, well written and he is a consummate 
professional both in and out of the classroom. [The beneficiary] is scheduled to teach 
numerous classes for us throughout next year. We do not want to loose [sic] him as our 
adult programs are ongoing and we need him to teach specialized courses in SPAS. 
His students praise his teaching style. . . . He has had consistently high ratings from 
students about his teaching, presentations, knowledge and a wide variety of world 
experience. . . . 
We support [the beneficiary's] efforts to pursue his wish to become an American citizen 
through the National Interest Waiver. 
I have known [the beneficiary] over the last four years. . . . [W]e are currently on the 
same committee that is charged with promoting the empowerment of women in Africa 
in the new global economy. 
. . . [Hlis training in economics, finance, business management and sociology uniquely 
qualifies him for the multi-disciplinary nature of work on economic growth and 
development, in the era of globalization. . . . Through his teaching and research, he will 
make valuable contributions to the colleges and universities that employ him, to his 
community, and to the nation. 
I've known [the beneficiary] for one year, talked with him concerning the academics job 
market, and have assisted his efforts to find full-time work. From my conversations 
with him and reviewing his curriculum vitae, I am impressed with what he can bring to 
an academic institution and to the U.S. 
His education is broader than what most economists earn. He complements his 
economics training with studies in business management and sociology. . . . He also has 
experience with business consulting and working with non-profit organizations. His 
diverse background makes him suitable for a liberal arts college and for participating in 
interdisciplinary/professional programs in American universities. 
I've examined his student teaching evaluations and his scores in all categories indicate 
quality teaching. 
The above letters contain general praise for the beneficiary. The quoted witnesses clearly consider the 
beneficiary to be well qualified for a university teaching position. The national interest waiver, 
however, is a special benefit over and above the basic classification sought, and the threshold for that 
benefit is well above simply being competent and qualified to do one's job. 
The petitioner submitted a list of five "publications in progress," indicating that the beneficiary had 
presented one paper at Wake Forest University, with one more "ready to be presented for publication" 
and the other three "in progress." The beneficiary's curriculum vitae did not list any published work. 
Thus, the petitioner did not claim that any published work by the petitioner was in print as of the 
petition's filing date. 
The petitioner's initial submission also included course evaluation materials and general documentation 
of the beneficiary's professional credentials and his participation at various conferences. As with the 
letters, these documents show that the beneficiary is qualified and active in his profession, but they do 
not set him apart from other qualified professionals in his field. 
On February 26, 2009, the director notified the petitioner that the director would deny the petition 
unless the petitioner submitted evidence to meet the guidelines set forth in Matter of New York State 
Dept. of Transportation. In response, the petitioner submitted additional documentation of the 
beneficiary's credentials and a list of courses that he has taught. The etitioner made no effort to 
establish the beneficiary's eligibility for the waiver. In a new letter, stated: "we find 
that we checked the wrong box in our original petition," and that the beneficiary "is NOT seeking a 
National Interest Waiver" (emphasis in original). Considering repeated use of the phrase 
"National Interest Waiver" in her September 2006 letter, her subsequent claim lacks credibility. 
Nevertheless, we acknowledge the petitioner's evident abandonment of the waiver application. This 
issue resurfaces on appeal, and we will discuss it in greater detail in that context. 
The director denied the petition on May 6, 2009, stating the petitioner "failed to submit any of the 
information we requested." The director found "there is no evidence whatsoever that suggests the 
beneficiary warrants a waiver of the labor certification requirement in the national interest." 
On appeal, the petitioner repeats the claim that "we had checked the wrong box in ow original petition" 
and that the beneficiary "is not seeking a National Interest Waiver." The petitioner indicates that the 
petitioner had intended to seek to classify the beneficiary as a member of the professions holding an 
advanced degree, but not with a national interest waiver. In a supplement to the appeal, the petitioner 
submits documentation showing that it has applied for a labor certification on the beneficiary's behalf. 
Page 6 
As previously discussed, the petitioner checked box "if' at Part 2 of the Form 1-140 petition, 
indicating that the petitioner sought a national interest waiver requesting to classify the beneficiary 
as a member of the professions holding an advanced degree or an alien of exceptional ability. The 
petitioner also signed the Form 1-140 under penalty of perjury, certifying that "this petition and the 
evidence submitted with it are all true and correct." The individual who signed Form 1-140,- 
repeatedly referred to the waiver in her letter accompanying the initial filing. There is no 
credible evidence that the petitioner simply "checked the wrong box." Rather, the record indicates 
that the petitioner deliberately sought the waiver, but then changed its mind upon learning the caliber 
of evidence required to show the beneficiary's eligibility for the waiver. 
The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the 
specifically requested classification, the agency is not required to consider, sua sponte, whether the 
alien is eligible for an alternate classification. Brazil Quality Stones, Inc., v. Chertofi 286 Fed. 
Appx. 963 (9a Cir. July 10, 2008). While the petitioner, here, does not seek an entirely different 
classification for the beneficiary, the petitioner nevertheless seeks a fundamental readjudication of 
the petition on a comparable scope. 
Moreover, USCIS is statutorily prohibited from providing a petitioner with multiple adjudications for a 
single petition with a single fee. The initial filing fee for the Form 1-140 covered the cost of the 
director's adjudication of the 1-140 petition with a request for the national interest waiver. Pursuant 
to section 286(m) of the Act, 8 U.S.C. 5 1356, USCIS is required to recover the full cost of 
adjudication. In addition to the statutory requirement, Office of Management and Budget (OMB) 
Circular A-25 requires that USCIS recover all direct and indirect costs of providing a good, resource, 
or service.' If the petitioner seeks adjudication of the petition with a labor certification, then the 
petitioner must file a separate Form 1-140 petition, with the accompanying fee and an approved labor 
certification, requesting that adjudication. 
Furthermore, even if we were to entertain a change of adjudication at this late date, we would have to 
find, also, that the petition was not properly filed. When a petition involves a labor certification, the 
approved labor certification must accompany the initial filing of that petition. See 8 C.F.R. 
5 204.5(a)(2). The filing date of the application for labor certification determines the petition's priority 
date. See 8 C.F.R. $ 204.5(d). If a petition that requires an accompanying labor certification is filed 
without that labor certification, the petition cannot be approved, and a denial on that ground cannot be 
appealed. See 8 C.F.R. tj 103.1 (f)(3)(iii)(B)(as in effect on February 28,2003). 
While the petitioner, on appeal, contends that it had applied for the waiver essentially by mistake, the 
petitioner also attempts to address the guidelines in Matter of New York State Dept. of Transportation. 
The petitioner submits documentation of the beneficiary's participation in professional conferences and 
other evidence of his continuing work in his field. The petitioner, however, had already forfeited its 
opportunity to submit evidence in support of the waiver claim. 
1 See http:Nwww.whitehouse.gov/omb/circulars/aO25/aO25.html. 
The director had specifically informed the petitioner of the deficiencies in the record in the February 26, 
2009 notice discussed earlier. At that time, the petitioner could have submitted materials to support the 
waiver claim. Instead, however, the petitioner chose to effectively abandon the waiver claim by 
asserting that the beneficiary "is NOT seeking a National Interest Waiver." The credibility of the 
petitioner's claim to have "checked the wrong box" is irrelevant here. What is important is that the 
director informed the petitioner that the petition would be denied without evidence of the beneficiary's 
eligibility for the waiver, and that the petitioner declined to submit such evidence at that time. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the 
first time on appeal. See Matter ofsoriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). If the petitioner had wanted the submitted evidence 
to be considered, it should have submitted the documents in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence submitted on appeal. 
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. The petitioner made no effort to establish the beneficiary's 
eligibility for the waiver at the appropriate point in the proceeding, and we will not consider the 
petitioner's later untimely attempts to do so. 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. The 
burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not sustained that burden. 
This decision is without prejudice to the filing of a new petition by a United States employer 
accompanied by a labor certification issued by the Department of Labor, appropriate supporting 
evidence and fee. The petitioner asserts that it has already applied for such a labor certification, which, 
if approved, can properly form the basis for a new petition. 
ORDER: The appeal is dismissed.