dismissed EB-2 NIW Case: Electrical Engineering

(b)(6)
DATEDEC 0 5 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Deplirtmeot of.Homelaod 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:· In.trojgra:n.t Petition for Alien Worker as a Member of the Professions Holding an Advanced 
· Degree or an Alien of Exceptional Ability ;Pursua,nt to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: . 
Endos .ed please find the decision ofthe Adrninistr<ltive Appeals .Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not anilOunce new constructions of law nor, establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
yol!r case or if yol) see}c to present new facts for consideration, you may file a motion to reconsider or a 
motion toreopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-2908) 
within 33 days of the date of this decision. P•ease review the Form I-290B instructions at 
http:/Jwww.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, 
.5 Ron Rosen· . . 
Chief, Administrative Appeals Office ··' 
www.uscis.gov 
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DISCUSSION: . The Director, Texas Service Center, denied the e111ployment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO 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 an alien of exceptional ability in the sciences. The petitioner seeks 
employment as an electrical engi_neer. At ~be time of filing, the. petitioner worked for a 
consulting firm in Venezuela, and performed consulting work for 
Florida. 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 th~ United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding the equivalent of an advanced degree, but that the petitioner has not established that an 
exemption from the requi_rement of a job offer would be in the national interest of .the United States. 
The director also found that the petitioner bad not properly applied for the waiver. 
On appeal, the petitioner submits a brief from counsel 
and supporting exhibits. 
Section 203(b) of the Act states, iil pertinent part: 
(2) Aliens Who Are Members_ of tbe Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) Iii General. '- Visas shall be road~ 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 s~bsta11tially 
benefit prospectively the I1atio11al economy, cultural or educa:tional interests, ot welfare 
of the United States, and whose services in the sc.iences, 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 n_ational interest, wruve the requirements of subparagraph (A) that an <dien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The pet_itioner claims eligibility for classification aS ail alien of exceptional ability in the sciences. The 
director made no finding regarding this claim, because the petitioner submitted sufficient 
evidence to 
establish eligibility for classification as a member of the professions with post-baccalaureate experience 
equivalent to a.n advanced degree under the U.S. CitiZenship and Immigration Servi~s (USCIS) 
regulation at 8 C.F.R. § 204.5(k)(2). _The record supports the director's determination. 
The remaining issue is whether the petitioner has established that a waiver of the job offer requirement, 
and thus a .labor certification, is irt the natiomil interest. The USCIS regulation at 8 C.F.R. 
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§ 204.5(k)(4)(ii) states that, to apply for the national interest waiver, the petitioner must submit Form 
ETA-750B, Statement of Qualification~ of Alien, in duplicate, as well as evidence to support the 
claim that such exemption would be in the national int~rest. Form ETA-750 is now obsolete, 
replaced by ETA Form 9089. Parts J, K, and Lof ETA Form 9089 have replaced Form ETA-750:8. 
The petitioner's initial submission included an entire E:t A Form 9089. The petitioner completed 
portions of Part 1, Alien Inforn'lation, and left Part K, Alien Work Experience, blank. On the fotril, 
the petitioner provided basic identifying information, but did not provide the required information 
about past employment or where he earned his degree. 
In denying the petition on March 20, 2013, the director stated that "the petitioner did not submit a 
properly completed Form 9089, Pa,rts J, K, and Las Part K was incomplete." The director cited this 
omission as one of the grounds for peniaL The petitioner does not address this issue on appeal, and 
· has therefore abandoned it. When an appellant fails to offer argument on an issue, that issue is 
abandoned. Sepu1vedg V . us Att 'y Gen. ,401 F.3d 1226, 1228 n.2. (11th Cir. 2005), citing United 
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). See also Hristov v. Roark, No. 09~ 
CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff abandoned his 
claims as he failed to raise them on appeal to the AAO). 
In addition to finding that the petitioner had not properly applied for tbe waiver, the director also 
decided that tbe waiver application failed on the merits. Neither the statute nor the pertinent reg11Iations 
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 "fo9used on national interest by increasing the number and proportion of visas for 
immigrants who would benefit the United States economic(l.liy and otherwise .... " S. Rep. No. 55; 
101st Cong., 1st Sess., 11 (1989). 
. . [ . 
Supplementary information to regulations i.mplexru:mting the Immigration 'Act of 1990, P.L. 10b649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states: 
The Service [now USCIS] believes it appropriate to leave the application of this test 
as flexible as possible, although clearly ~n 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 ''exc·eptional.''] 
The burden will rest with the alien to establish that exerilption 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 Dept of Transportation, 22 I&N Dec. 215, 217~18 (Act. Assoc. Comm'r 1998} 
(.NYSDOI), has set forth sever~I factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish tb~t tbe al:ien seeks employment in an area of 
substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner see1d::n.g the waiver must establish that the alien will sel'Ve 
the natjom:~.l interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. /d. at 217-18. 
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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 tne alien will, in the future, serve the national interest ca11not suffice to 
· establish prospective ncttional benefit. The term ''prospective'' is included here to require future 
contributions by the alien, rather than to facilitate tbe en~ry of an alien with no demonstrable prior 
achievements, and whose benefit to the ~ational interest would thus be entirely speculat.ive. /d. 
The USCIS reglilation 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 eudeavoL 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 
signific·antly above that ordinarily encou.ntered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on February 10, 2012. In an introductory statement, 
counsel's firm stated: 
[The petitioner 1 is currently a project engineer and a prospect coordinator for 
[sic], CAin Venerueia. His primary fUnction is that of a project engineer 
with a specific focus on the design, implementa~ion, and maintenance of electrical 
equipment facilities, components and systems for commercial, industrial and 
domestic purposes. His most recent accomplishments have be.en the development of 
new technologies of energy saving innovation in housing that has had a direct impact 
on more than 55,000 inhabitants in five {5} satellite cities with the potential of an 
e~panded capacity from 20,000 hectares up to 500,000 hectares in the near future. 
One of the most notable projects to date, was the design ancl development of a public 
transportation mode that serves more than 50,000 persons per day that typically used 
private autos, buses, taxi's, and moto~cycles. This unique innovation has · 
significant! y reduced the traffic congestion in {the second largest and most 
densely populated city in Venezuela} as well as toxic emissions from petroleum 
powered vehicles. 
fThe petitionerl is also under contract as an Electrical Engineering Contr1lctor with 
He is involvecl in the development of state-of-the-art gear 
boxes used in American power . plants for cooling and recycling steam used to 
·generate electricity,. · · 
The overall 
results of [the petitioner's] accomplishments to date have made li very 
substantial and significant 'impact towards the development of efficient mass transit 
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NON-PRECEDENT DECISION 
systems that will reduce the carbon footprint not only in Venezuela but also in the 
United States. 
Several witness letters, many of them translated from Spanish, accompanied the -filing Of the 
petition. Three ofthe letters concerned the petitioner's "Special Degree Thesis" from 2005, "Study 
for Enlarging the ' Attending to the Demand of 
Passengers~" (the tec()rd contains numerous variant translations of the title.) The petitioner claimed 
that the study permits "an enlargement of which will result in an increase of 
up to 24 wagons per hour, and a frequency of 2 minutes, 30 seconds of wagons per station, during 
peak h,ours." The study also outlined ''a contingency plan for the moment ·of fion;.desired electrical 
eventualities in one or several of 
.....__ ____ __,. writing on behalf of , stated: 
.With the [end] of improving the urban public transport of 
·the elaborated a proposal for a System Of transport ... with a view of 
substituting the "carro por puesto" (collective taxi) of five seats, for units of a larger 
capacity .... 
The recognized the study and developfuent of the innovating and 
research contribution of the . . . STUDY FOR EXPANDING THE T,RACTION 
SUBSTATIONS OF Tl-IE _ ___ _ _ _ IN FUNCTION TO TI-JE 
INCREASE QF THE DEMAND OF PASSENGERS [by the petitioner]. 
This research work permitted to offer the enlargement of the and 
obtain the increase from the demand of the services ... and for future expansions. 
Ms. indicated that ridership increased by 147% from 2007 to 2008, growing "from a daily 
(}vera.ge of eight thousand users" to ''31 thousand daily passengers" by the end of 2009. Ms. 
stat~d that the petitioner's "research work" was one of the ''factors influencing the increase of 
mobilized population." 
Osvaldo H. Segade, artner manager of _ was manager of 
integral systems for "in charge of the inspection of the construction ofthe , .. Mass[] 
Transit System of during the period · 2003:.2007.'' Discussing the petitioner ' s research 
project that Ms. Chacin named above, Mr. stated: 
This Research Work allowed offering the reinforcement of the 
which se1Ved as an expansion platform for the inc;tement of the service to passengers 
. sustained by line number one and future expansions of the 
determining the new levels of electric load of the selection of 
· conductors selection, Elaboration of technical ----------------------
(b)(6)
NON-PRECEDENT DECISION 
· . Page 6 
specifications and diagrams of and this way, adequately serve a 
transport capacity of 14000 passengers per bout and direction. 
Mr. ser\red as an industrial consultant on the Metro project. 
Douglas Semprun, general manager of operations and maintenance for stated: 
With pleasure I redact this recommendation letter to [the petitioner], and in this way 
acknowledge his exceptional value developing innovating technologies and the 
improvement of public urban transport, by elaborating a proposal that directly 
allowed the benefit and adapting of tbe policy of transport of 
[T]brough [the petitioner's] innovating analysis and an exceptional technical solution, 
it is possible to determ.ine the new levels ofJ electrical load of the 
group, and the selection of conductors, and in 
this way adequately take care of a capacity of transport of 14,000 passenge~s per hour 
and direction .... 
This study of non-desired contingencies of electrical eventualities is developed, and 
which could present a one or several of the of Stage 1 of Line 1 
of the and simulate the impact at the substation where the non­
desired eventuality happens, and the consequences on the remaining 
substations. 
Other witnesses described the petitioner's activities outside of mass transit. 
technical manager at stated: 
As a fo~al point and as a sample of the coilllilittnent of [the petitioner] with the 
innovating development, the massive building of houses, and the commitment with 
the conditions of people, at the plains of _J and the 
implementation of a model initiative of economic a,nd social development of near 
55,000 inhabitants in 5 satellite cities, on a surface of 20,000 hect(:lres, and a capacity 
of expansion of 500,000 hectares, covering residenttal and urbanistic aspects, whi~h 
have been replic(:lted at nationaJ level because of its high innovation aspect. 
Mr. stated that the petitioner had worked on "engineering pf details" for three schools in 
approximately 40 miles west of but provided no further information apart 
from general descriptions of the schools' floor plans. 
project engineer with I , stat~d: '' I 
can recognizes two (02) [of the petitioner's]projects that allowed me to maintain the petrochemical 
operation in a safe and reliable form in my perfofiilanee atea .... I am completely sure that his effort 
will have a positive impact to the petroleum industry in the U.S.A.'' One of the petitioner's two 
(b)(6)
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Page 7 
projects concerned "Furnaces/Heaters," and the other "assur[ ed] the reliability of the Electrical Sub­
Stations.'' 
Architect praised the petitioner's "exceptional ability on developing health systems, 
whose systems have been implemented" throughout Venezuela. Mr. identified six hospitals 
and clinics and specified their square footage, but did hot indicate the nature of the petitioner's work 
at the n.amed sit~s. . · 
Witnesses from other industries offered general praise for the petitioner, but provided no details~ 
With respect to his intended work in the United 
December 15, 2010 letter he received from 
The letter reads, in part: 
States, the petitioner submitted a copy of a 
chief exec1,1tive officer and president of 
We need an expert opinion on the developlllent of electrical gear boxes to be used in 
American Power Plants fot cooling and recycling of steam used to generate 
· electricity. 
Currently our electrical gear boxes are no longer adequate to meet the E.P.A. 
standards. We are searching for the R & D for the state of the art electrical gea.r 
boxes that meet or exceed ·federal state and local standards. Your preliminary 
research and recommendations ate in.keeping with our needs and requirements. 
We, therefore, are prepared to enter into a consulting agreement with you, that w"ill 
provide the technical data and research for the next generation of electrical geat 
boxes. 
Translated copies ofcertificates indicate that the petitioner faCilitated workshops on "Introduction to 
Electrical Engineering" and "Renewable Energy," and received training certificates in various 
technical areas and first aid. . 
On August 15, 2012, th~ director issued. a request for evidence (RFE), instructing the petitjoper to 
submit documentation to meet the guidelines set forth in NYSDOt In response, counsel's law firm 
stated: ''Counsel has previously submitted all of the req1Jesteq evidence as outlined in this RFE." 
Most of the ensuing discussion concerned the petitioner's exceptional ability claim. Section 
203(b)(2)(A) of the Act specifies that aliens of exceptional ability are subject to tbe job offer 
. requirement. Therefore, evidence of exceptional ability-is not evidence of eligibility for the waiver. 
Counsel's law firm stated that the petitioner ''has dramatically affected the economy of Venezuela; 
specifically in the Whereby he was instrumental in improving the grid for the 
rna~~ transit system." Counsel's law firm asserted that the implementation of this grid "that does not 
depend on fossil fuel ... has been noted by the Mayor of '' Counsel's law firth did not 
elaborate on th_is point or identify any evidentiary exhibit to suppott the daim. The record contains 
(b)(6)
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Page 8 
no statement or documentation from the mayor of that city. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof i_n these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Coiillil'r 1972)). 
Counsel's law firtn stated: "The obviou~ importance and dangers of global warming and the 
reduction of carbon emissions and greenhouse gases is immediately ~pparent." Counsel's law firm 
did. not establish how much the petitioner's past work has affected these issues, or wb~_t effect the 
petitioner's intended work in the United States would have on carbon and greenhouse gas emissions. 
Increased use of mass transit has an overall beneficial effect, but this is only one ofthe petitioner's 
past projects. Witnesses have indicated that the petitioner has also Worked on beh~lf of .''the Oil .and 
Gas Industry" and "tbe _ '' The witnesses who mentioned that 
work did not indicate that the petitioner's work for those industries had either the intention or the 
result of reducing pollution. 
Along with copies of previous submissions, the petitioner submitted three new witness letters. 
-' a retired electrical engineer who fortnerlyworked for stated: 
I have reviewed the credentials and resumeof [the petitioner] and I have come to the 
conclusion that this young man has had a very impressive care~t. He has 
demonstrated a unique ability to tackle complex and multi-faceted issues. His 
accomplishments are tndicative of ~n individual of exceptional ability and talents. 
I am of the opin[ion] that [the petitioner] could make a very significant and 
compreh~nsive impact on the US economy, especially in the area of mass transit and 
low voltage technology. 
The remaining two letters are similar in format and contain the same gtartunatical errors and 
anomalies, and at times the Same phrasing • . (The quoted passages below reproduce some of these 
errors as they originally appeared.) Such similarities suggest common authorship. · C/ Surinder 
Singh v. Board of immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006) (upbolqing an immigration 
judge's adverse ct~dibility deteirnination in asylum proceedings based in part on the similarity of 
some of the affidavits); Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cit. 2007) 
(concluding that an immigration judge may reasonably infer that when. an asylum applicant submits 
strikingly similar affidavits, the applicant is the common source ).1 The petitioner submitted the new 
letters only in English, with no indication that they are translations from anotbe{language , so the 
similarities are not attributable to a common translator (as is the case with the Spanish-language 
letters submitted previously). 
A letter signed by field services engiiJ.eer with 
1 The petitioner had previously submitted two entirely identical letters, signed respective! 
These letters attested to the petitioner's past work with 
but consisted only ofgeneralpraise for the petitioner's skills. · 
, reads, in part: 
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NON~PRECEDENT DEC{S/ON 
career achievements involves, strengthening of the national health 
systems and infrastructure, through facility planning, construction and management 
that ensured to accommodate the technologies that h(lve been accompanied by 
significant medical breakthroughs, this has been replicated in over 15+ designs at 
Federal and Private facilities, from · Public Hospitals with a catchment area of 950.000 
inhabitants, Private clinics attending over 100 patients a day or Ambulatory Medical 
Care in rural areas; hO!JSing development with an approach of ene_rgy savings and 
with the implementation of a model initiative of economic and social development, 
that has been replicated at a National scope in over 40+ designs because of its high 
innovation aspect. ... 
Illustrating the potential impact of [the petitioner] to the U.S. development, I note his 
experience in housing and urbanism development, a renewed federal commitment is 
bringing unprecedented policy focus and targeted resources to integrate green 
practices into affordable housing .... 
The development of electrical gear boxes proposed by [the petitioner] under the 
agreement with cou..ld potentially · result in NOx reduction of up to 8Q 
percent, with lower reductions achievable in oil-fired 'boilers. · 
. \ 
In terms of Public Health Infrastructure ... [there are] more than 3.000 medical 
projects representing $35 billion and 378 million square feet began the planning 
stage .... All this present development and future tteiids could potentially be address 
by [the petitioner] and his wealth experience in large scale health infrastructure 
projects . 
. 
. . Public transportation use ... is reaching fast the maximum capacity. A recent 
trend in search of ways to increase the ca acity of . the existing system would be 
greatly beneficiated by experience, precisely in this trend, 
bringing a continuous development in the economy, quality of life and cleaner 
environment amorig others subjects. 
A letter signed by project engineer for 
I 
reads, in part 
expertise (in addition to his educational background, 
academic/career achievements) includes, the housing development with a 
fundamental approach of urbanism, engineering and landscaping, minimizing the use 
of resources, optimizing building elements, using new materials and taking advantage 
of the new tendencies of energy savings and the global vision with the 
implementation of a model initiative of economic and social development, all of 
which have been replicated at a National level in over 40+ designs because of its high 
innovation aspect. . .. 
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As examples of his potential contribution to the US development, I note his 
experience in housing and development. ... [The petitioner] ha,s significant proven 
experience in urbanism, engineering and landscaping minimizing the use of 
resources, optimizing building elements and using new materials, developing and 
experimenting on social policies, neighborhoods and neo-traditional urbanism. 
In terms of public transportation ... [the petitioner] has a wider experience . 
specifically irt this scenario where is necessa,ry to increase the capacity to continue to 
develop the U.S. economy. In the area of urban mass transit [the petitioner] is 
considered an expert and a recognized authority~ 
The director denied the petition on March 20, 2013. The director concluded tb<:tt the petitioner's 
occupation has substantial intrinsic merit and can produce benefits that are national in scope. The 
ditect6t, however, determined that the petitioner had not met the third prong of the NYSDOT 
national interest test by establishing past impact and influence on his field: The director quoted from 
sev~ral witness letters, but stated that ''the writers do not explain how the beneficiary's work has so 
fat affected ... the fidd as a whole." · 
On app~al, counsel states that the phrase ''national interest" appears "36 time.s" in the director's 
decision, which counsel 
deems "overkill" and an ''abuse of discretion that completely ignores the 
Service's requirement to apply a 'flexible as possible' standard of review." By statute and 
regulation, USCIS grants the waiver of the job offer only when it is in the "n£Itional interest'' to do 
, so. Counsel does not explain how repetition of the statutory phrase "national interest" amounts to an 
"abuse of discretion." 
Counsel states that the director "tailed to review the documentation submitted With the original 
application as well as supplemental information provided in response to the RFE." The denial 
notice, however, cited specific materials from both submissions. Counsel identifies no overlooked 
exhibit that would have changed the outcome ofthe director's decision. 
Counsel states: "it is an established fact that there is a shortage of qualified electrical engineers in the 
United States, especially inNorth Florida." The petitioner submits several web printouts to support 
this assertion. (One of the submitted articles, from the Philadelphia Inquirer, states that the 
evidence for a shortage is mixed, indicating "there have been layoffs and [engineers] are worried 
about losing their jobs.") Counsel asserts that decision "to hire the petitioner .. ,. is 
substantial and credible evidence that the US employer was unable to find a 'qualified' US wotketto 
fill the position.'' 
Most of the exhibits submitted on appeal are media articles submitted a,s background to support 
counsel's claims.. The only appellate exhibit to identify the petitioner specifically is a new letter 
from asserting: "I made several attempts to find a capable and qualified 
engineering consultant ... with no success." · 
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With regard to the unavailability of qualified U.S. workers, the job offer waiver based on national 
interest is not warranted solely for the purpose of ameliorating a local labor shortage, because th~ 
labor certification process is already in place to address su,ch shortages. NYSDOT, 22 I&N Dec. 218. 
Counsel contends that "[t]he labor certification process is convoluted cp1d disruptive." The job offer 
requirement, including labor certification, is the statutory aefault position for the classification the 
petitioner seeks. USCIS must judge waiver applications case-by-case, rather than grant blanket 
waivers owing to perceived flaws in the proces~. The waiver is not a means for employers (or self­
petitioning aliens) to avoid the inconvenience or the labor certification process. /d. at 223. 
Without identifying the precedent decision directly, counsel contests several elements of NYSDOT, 
from ·its wording V) its creation of "an 'artificial' standard, with no legislative or rational basis."' As 
a precedent decision, NYSDOT is binding on all USCIS employees. 8 C.F.R. § 103.3(c).' Counsel 
cites no judicial decision or other case law to overru}e the standa.rc.l set forth in NYSDOT. 
Counsel asserts: "The beneficiary has not merely enumerated his accomplishments but' rather has 
documented his achievements with a projection of future benefit to the 'national economy,' 
specifically 12 major projects, under his direct supervision." Counsel states that the petitioner has 
made substantial contributions regarding "the following areas of national interest:" 
• Mass Transit Safety 
• Pollution Control 
• Energy EffiCiency 
• Alternative Fuels 
• Oil Exploration 
• Food Safety Production 
• Electricity Grid {USA} 
• US :Patent Application 
An alien cannot secure a national interest waiver simply by den::tonstrating that he or she holds a 
patent. Whether the specific innovation serves the national interest must be decided on a case by 
q·tse basis. NYSDOT at 221 n.7. Here, the petitioner does not claim to hold a pateQt, only to have 
filed an application. The United States Patent and Trademark Office received 542,815 utility pateiJl 
applications in 2012, more than half of them from a foreign source.2 The filing of a patent 
application does not inherently demonstrate a level of impact or influence that warrants approval of 
the national interest waiver. 
· Listing the areas of endeavor affected by the petitioner's work, as counsel has done, speaks to the 
"intrinsic merit" prong of the NYSDOT national interest test, which the petitioner has met. There 
exists no blanket waiver for every foreign worker whose past work has involved energy efficiency, 
food s~fety, or the other topics listed above. Even then, the amount and detail of submitted 
2 http:(/www.uspto.gov/wcb/offices/ac/ido/ocipltat/us stat.htm (printout added to record October :24, ~013). 
(b)(6)
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Page 12 
information rel<J.ting to each of those subjects varies greatly. Several witnesses have described the 
petitioner's report relating to electrical improvements to mass transit system, but ·the 
record offers almost no details about the petitioner's work on behalf of the oil and gas industry, and 
th~ issue of food safety appears to surface for the first time ort appeaL Witnesses indiCated that one 
of the petitioner's projects involved hospitals, and another involved schools, but there is no 
indication of what the petitioner did on the projects. The re.cord overall lacks the necessary 
information about the petitioner's influenceon the fields he claims to have affected. 
Serving clients in a wide range Of industries does not create an evtitlement or imply eligibility for .the 
waiver. Witness letters devoted particular attention to the petitioner's wotk on mass transit (which 
appears to have begun as a st11dent project), but the record does not show that mass transit systems in 
the United States are at a stage of development comp<J.rable to those in Venezuela, giving the 
petitioner the opportunity to make similar contributions here, .nor does it show that mass transit 
authorities in the United States seek the petitioner's involvement or input. 
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 notopety on the scale of national 
acclaim, but the petitioner "must clearly pres(!nt a significant benefit to the field of endeavor:" 
NYSDOT at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable 
achievement wit.h some degree of influence on the field as a whole."). In.addition, the pe.titiOQ.er·has not 
addressed the director's finding that he did riot properly apply forthe waiver. 
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 n<J.tional interest waivers on the basis of the overall importance of a given profession, .rather than 
on the merits Of the individual alien. Ov the bas.is 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 AAO will dismiss the <ippeal for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Sectiov 491 of the Act, 8 U.S.C. § 1361; Matter of 
Otiencje, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner ha.s not met that burden. 
ORDER: The appeal is dismissed.