dismissed EB-2 NIW Case: Electrical And Computer Engineering

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U.S. Department of IIonieland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
R j- 
SRC 08 142 51259 
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: 
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. 
u 
2 Robert P. W~emann, Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employrnent-based immigrant visa petition. 
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. 9 1153(b)(2), as a member of the professions holding an advanced degree. At the time he filed the 
petition, the petitioner was a doctoral student in the Automated Nanoscale Design Group at kce University. 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 failed to submit Form ETA-750B and 
therefore did not properly apply for 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, who holds an M.S. in Electrical and Computer Engineering fiom 
hce University, 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. 
Citizenship and Immigration Services (CIS) regulations at 8 C.F.R. 8 204.5(k)(4)(ii) state that, to apply for 
the national interest waiver, the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien, in duplicate. The petitioner's initial submission, filed on March 28, 2008, did not include this required 
document. In a letter accompanying the initial filing, counsel listed the various enclosed exhibits and stated: 
"This petition is being filed in a relatively skeletal form, due to time sensitive and unforeseen circumstances. 
Supplementation will be timely made of additional, relevant documentation in support of the above petition." 
Counsel did not specifically mention Form ETA-750B nor explain why the form was omitted from the 
"skeletal" filing, which included third-party materials such as witness letters and a university transcript. 
Page 3 
The director denied the petition on May 6, 2008, based on the petitioner's failure to submit the required Form 
ETA-750B. On appeal, counsel states: "[The director] did not properly consider weight of available evidence 
in adjudicating petition. Petitioner notified Service of emergency basis for filing and to-be-submitted 
supplementation. Decision prematurely received." 
With respect to the "to-be-submitted supplementation," counsel indicates that the materials will be 
forthcoming within 30 days. To date, three months after the filing of the appeal, the record contains no 
further substantive submission from the petitioner. On August 28, 2008, the AAO sent a message to counsel 
by facsimile, allowing the petitioner five business days to produce the promised supplement to the record. 
The permitted time has elapsed, and the AAO has received no response from counsel. We therefore consider 
the record to be complete as it now stands. 
There is no evidence to show that the petitioner made any effort to supplement the record during the more 
than five weeks between the filing date and the denial date. Similarly, the record reflects no further action by 
the petitioner in the three months following the denial date. Counsel, on appeal, did not explain why the 
appeal itself did not include any further documentation in support of the petition. We note that the Form 
ETA-750B calls for information about the alien's education and employment experience, all of which would 
be information known to the alien. Counsel has never explained the nature of the ongoing "emergency" that 
has evidently prevented the petitioner from submitting this required form for over five months. 
Because the petitioner has made no discernible effort to complete his petition, even on appeal, the AAO 
affirms the director's decision to deny the petition. In the interest of thoroughness, the AAO will briefly 
address the merits of the minimal evidence that the petitioner has provided so far. 
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, 
10lst Cong., 1st Sess., 11 (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 CIS] 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 ofNew York State Dept. of Transportation, 22 I&N Dec. 21 5 (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 seehng 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. 9 204.5(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 offerilabor 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 evidence submitted by the petitioner does not set him apart from other engineers in his field. Much of the 
evidence attests simply to his basic qualifications in the field and his acceptance into graduate study programs at 
various universities. An undated letter from 
 of Niroo Research Institute was evidently written as 
a recommendation letter in support of the petitioner's graduate school applications. The record is silent with 
regard to the petitioner's achievements as an engineer (as opposed to an engineering student). 
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. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternative 
basis for dismissal. In visa petition proceedings, the burden of proving eligbility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 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.