dismissed EB-2 NIW Case: Education

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 03 121 52805 Office: VERMONT SERVICE CENTER sp p i 1005 
IN RE: Petitioner: 
Beneficiary: 
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PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an ~dvanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
Robert P. ~iemgn, Director 
Administrative Appeals Office 
EAC 03 121 52085 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary pursuant to 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 to employ the beneficiary as the director of learning at the Penobscot Job Corps Center, Bangor, Maine. 
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. 
We note that the Form 1-140 petition identifies the alien beneficiary as the petitioner. Based on this designation, 
both the director and the AAO have previously referred to the beneficiary as the petitioner. The beneficiary, 
however, did not sign Form 1-140 and therefore he cannot be considered to be the petitioner. The individual who 
signed the Form 1-140 was ~r.- 
We further note that some documents in the record identify ~r. as a vice president of the Penobscot Job 
Corps Center; other materials identify her as a vice president of Training and Development Corporation. The Job 
Corps is a program administered by the Employment and Training Administration of the United States 
Department of Labor; Training and Development Corporation is a private co oration under contract to the 
Department of Labor to operate the center in Penobscot. We conclude that Dr. dih is an official of Training 
and Development Corporation rather than the Department of Labor or the Job Corps, and therefore we consider 
the petitioner to be Training and Development Corporation. An official of that company, and not the beneficiary, 
has (by signing the Form 1-140) assumed legal responsibility for the accuracy and truthfulness of the materials 
and claims submitted in support of the petition. Because the same attorney represents both the beneficiary and the 
employer, prior erroneous references to the beneficiary as the petitioner do not appear to have prejudiced the 
handling of the proceeding; the attorney of record has received all pertinent correspondence. 
Section 203(b) of the Act states in pertinent part that: 
(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. 
EAC 03 121 52085 
Page 3 
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, 
1 Olst Cong., 1 st Sess., 1 1 (1989). 
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 Citizenship and Immigration Services] 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. 215 (Comm. 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. 
Information on the 1-140 petition form indicates that the beneficiary has been offered a permanent, hll-time 
position as director of learning at Penobscot Job Corps Center. The record contains nothing from officials of the 
Job Corps or the Department of Labor Education and Training Administration to verify the terms or duration of 
employment. The "Letter of Appointment," naming the beneficiary to the above position, was issued not by the 
Job Corps but by the petitioner (signed b- president and CEO of the petitioning company). The 
letter, dated September 5,2002, does not specify the terms of employment. 
The letter contains a copy of a second letter, also issued to the beneficiary by the petitioner on the same day, 
September 5, 2002, signed b- the petitioner's human resources manager. This letter reads, in 
pertinent part: "It is my pleasure to confirm our verbal offer of a paid internship for your Curriculum Practical 
Training Program effective September 5, 2002. This internship is scheduled to end on August 15, 2003. During 
this internship your title will be Director of Learning." 
, 
EAC 03 121 52085 
Page 4 
The letter fiom Ms. indicates that the beneficiary's position is not permanent, as indicated on Form 1-140, 
but rather part of an "internship," lasting less than one year, in connection with "Curriculum Practical Training." 
As of September 2002, the beneficiary was a graduate student at the University of Michigan. Nothing in the 
official job offer documentation indicates that the beneficiary would remain at the Penobscot Job Corps Center, or 
at the petitioning company contracted to operate that center, after August 2003 or after the beneficiary completed 
his graduate studies. 
~r. identified above, states: "The position [the beneficiary] is currently filling at the Penobscot Job 
Corps Center has been vacant for some time, in part because of the innovations that [the petitioning company] 
brings to its work. Few educators have the broad range of skills that [the beneficiary] brings to the position." It 
remains that the beneficiary filled this position as part of a temporary student internship with a fixed ending date. 
[The beneficiary] is spearheading the development of a series of training sessions for Job Corps 
staff in the area of teaching challenging students. He is responsible for building training 
programs in these areas for staff from the Loring and Penobscot Job Corps Centers. . . . This 
work will impact over 1,100 students yearly, from across New England. . . . 
Nationally, Job Corps serves over 40,000 students a year. These students will ultimately benefit 
from the innovations currently being developed under [the beneficiary's] leadership. 
~r. also identified above, states that the beneficiary is "critical" in the petitioner's five-year plan to 
implement "a full-production learning system in our Job Corps Centers. . . . We expect him to take a leadership 
role in the organizational initiative to insure technological fluency in student and staff." The officials of the 
petitioning entity do not establish that the beneficiary's work has a demonstrably national (rather than local or 
regional) scope, nor do they persuasively explain why a national interest waiver is warranted. They appear to 
argue, in essence, that the position is an important one, and therefore the beneficiary should get a waiver in order 
to fill that position. This argument seems to presume a blanket waiver for the position in question. 
The petitioner submits copies of two agricultural textbooks published in Zimbabwe. The beneficiary is one of 
three credited authors of Focus on Agriculture, Book 3. Focus on Agriculture, Book 4 is credited solely to 
"P.G.D. Chard," but the beneficiary is named as the "Consultant Editor." These books shows that the beneficiary 
has put to practical use his master's degree in agriculture and education, but writing and editing textbooks is not 
prima facie evidence of eligibility for a national interest waiver. 
The director denied the petition, stating "it is not sufficient for the [petitioner] to simply enumerate the alien's 
qualifications. The record does not demonstrate that other individuals could not also similarly achieve and 
duplicate the beneficiary's accomplishments and obtaining [sic] the same or similar results." The director also 
indicated that the petitioner has not shown that the beneficiary's past accomplishments distinguish him from 
others trained in his field. 
On appeal, the petitioner submits a copy of the job description for the position of director of learning at Penobscot 
Job Corps Center, and statements from counsel and Dr. Kralovec. The job description is not dispositive. The fact 
that the alien is qualified for the job does not warrant a waiver of the job offedlabor certification requirement. 
Mutter of New York State Dept. of Transportation at 22 1. 
EAC 03 121 52085 
Page 5 
Counsel states: "The NYDOT decision gives only vague guidance regarding . . . how the national interest 
would be adversely affected if a labor certification were required for the alien." Because aliens in a broad 
variety of fields could conceivably qualify for the waiver, and because the statute and regulations contain no 
guidance at all in this regard, it would have been very difficult, if not impossible, for Matter of New York 
State Dept. of Transportation to include highly specific guidance that would apply to more than a very narrow 
band of potential waiver applicants. 
Counsel then states: "As noted in the record, there do not appear to be any available U.S. workers having the 
minimum qualifications." The function of the labor certification process is to test exactly that claim (an 
absence of qualified U.S. workers). Considering that the unavailability of qualified U.S. workers would 
typically be a favorable factor in an application for labor certification, counsel does not explain why that 
factor should be grounds for a waiver. 
The letter from Dr. Kralovec was originally written in support of an H-1B nonimmigrant visa petition (receipt 
number EAC 04 084 50793) filed by the petitioner on the beneficiary's behalf in early 2004. In this letter, Dr. 
Kralovec states: "Strong recruitment efforts have not been successful in trying to fill this position that [the 
beneficiary] is currently filling as an intern. . . . We propose to employ [the beneficiary] for a tem or 
three years, commencing 1 March 2004." The nonimmigrant visa petition for which Dr. HrZodof 
letter was approved, thus affording the beneficiary the opportunity to continue working for the petitioner. The 
filing of a labor certification would not inherently interrupt this already-authorized employment; the beneficiary 
could work throughout the three-year period of the visa while the labor certification is pending. Counsel states 
that labor certification is an "unnecessary barrier," but if counsel is correct that the petitioner "has simply found 
no one who can meet the stringent requirements of this position," then a labor certification would appear to be 
obtainable, without having to meet an additional burden of proof relating to the national interest waiver. In this 
light, the petitioner has essentially exchanged one "barrier" for another; if the petitioner were to apply for a labor 
certification, based on its asserted inability to locate a qualified worker, then the petitioner would not need to 
present an additional "national interest" argument. 
Counsel asserts that the beneficiary "has an impressive educational background" and "will be able to bring 
much more to the field of education" than a minimally qualified worker, and that the beneficiary "is one of 
the best and brightest in the field of vocational education," but the record does not objectively support this 
claim. Counsel makes several unsubstantiated assertions about the beneficiary's achievements in Zimbabwe, 
but the assertions of counsel do not constitute evidence. Matter of Laureano, 19 I&N Dec. 1, 3 (BIA 1983); 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). The director having previously stated that it cannot suffice simply to list the beneficiary's 
accomplishments, counsel cannot overcome this by listing the beneficiary's accomplishments. The record also 
does not show that the vocational training field in the United States is similar enough to the one in Zimbabwe to 
allow meaningful predictions about the beneficiary's potential impact in the United States. The record does not 
show that the beneficiary has had, or is likely to have, a significant impact on vocational training in the United 
States outside of two Job Corps centers in New England. 
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 labor certification will be in the national interest of the United States. 
EAC 03 12 1 52085 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 136 1. The petitioner has not sustained that burden. 
This denial 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. 
ORDER: The appeal is dismissed.