dismissed EB-2 NIW Case: Engineering

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
8 ,- 
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. tj 1 153(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. 
U 
5 Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office 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. 5 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a transport engineer. The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of an alien employment 
certification, is in the national interest of the United States. The director found that the petitioner did 
not qualify as an advanced degree professional and did not conclusively determine whether the 
petitioner qualifies for classification as an alien of exceptional ability. The director ultimately 
concluded 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. 
On appeal, the petitioner submits a personal statement discussing Citizenship and Immigration 
Service's (CIS) failure to issue work authorization to the petitioner while his Form 1-485, Application 
to Register Permanent Residence or Adjust Status, was pending. The petitioner's discussion fails to 
overcome the director's bases for denial. 
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 requirement of subparagraph (A) 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. 5 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty shall be considered the equivalent of a master's degree." Id. 
(Emphasis added.) 
The petitioner holds a Bachelor of Engineering from the Georgian Technical University. The petitioner 
completed the coursework for this degree "in the year 2002" and received his degree on February 10, 
2003. The petitioner worked as an engineer-technologist at the Georgian company Plastic for five 
years, from November 1998 to November 2003. The record contains no evidence of employment after 
November 2003. Thus, the petitioner does not have five years of experience following his bachelor's 
degree. The director concluded that the petitioner is not an advanced degree professional. The 
petitioner does not address this issue on appeal. As the petitioner does not have five years of post- 
baccalaureate experience, we concur with the director. 
The director concluded that because the petitioner does not possess an advanced degree or the 
regulatory equivalent, he must be seeking classification as an alien of exceptional ability. The director, 
however, while listing the regulatory criteria for that classification, did not reach a final conclusion on 
this issue. As the petitioner has not overcome the director's basis for denial for the reasons discussed 
below, we will also examine whether the petitioner has established eligibility as an alien of exceptional 
ability. An application or petition that fails to comply with the technical requirements of the law may 
be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). 
The regulation at 8 C.F.R. tj 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien 
must meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. 
These criteria follow below. 
The regulation at 8 C.F.R. tj 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered." Therefore, evidence submitted to establish 
exceptional ability must somehow place the alien above others in the field in order to fulfill the 
criteria below; qualifications possessed by every member of a given field cannot demonstrate "a 
degree of expertise significantly above that ordinarily encountered." The criteria follow. 
An official academic record showing that the alien has a degree, diploma, certzficate, or similar 
award from a college, university, school, or other institution of learning relating to the area of 
exceptional ability 
As stated above, the petitioner has a Bachelor of Engineering degree. Section 203(b)(2)(C) of the 
Act provides that the possession of a degree, diploma, certificate or similar award from a college, 
university school or other institution of learning shall not by itself be considered sufficient evidence 
of exceptional ability. Thus, we must determine whether the petitioner's degree is indicative of or 
consistent with a degree of expertise significantly above that ordinarily encountered. The record 
Page 4 
lacks evidence that a bachelor's degree is unusual in the petitioner's field of engineering. Thus, the 
petitioner has not established that he meets this criterion. 
Evidence in the form of letter($ from current or former employer(s) showing that the alien has at 
least ten years offull-time experience in the occupation for which he or she is being sought 
As stated above, the petitioner has documented only five years of experience. Thus, he has not 
established that he meets this criterion. 
A license to practice the profession or certzfication for a particular profession or occupation 
The record contains no evidence relating to this criterion. 
Evidence that the alien has commanded a salavy, or other remuneration for services, which 
demonstrates exceptional ability 
The petitioner submitted evidence that from November 1998 through November 2003 he earned 300 
GEL per month. The record contains no evidence that this wage is indicative of a degree of expertise 
significantly above that ordinarily encountered. Specifically, the record lacks evidence of typical 
engineering wages in Georgia. 
Evidence of membership in professional associations 
The petitioner submitted a June 7, 2005 letter from the Georgian Association of Young Engineers 
asserting that he "is" the Vice Chairman of the association since the date of the organization's 
founding. The petitioner submitted the registration of this association listing him as a member of the 
Board of Directors. The record contains no evidence regarding the reputation or significance of this 
association. Thus, the petitioner has not established that his role with this association is indicative of 
a degree of expertise above that ordinarily encountered. 
Evidence of recognition for achievements and signzficant contributions to the industry or field by 
peers, governmental entities, or professional or business organizations 
The petitioner submitted reference letters attesting to his character and academic work. 
 The 
petitioner, however, failed to submit evidence of the type of formal recognition for achievements 
contemplated by this criterion. Thus, the petitioner has not established that he meets this criterion. 
As the petitioner has not demonstrated that he is an alien of exceptional ability, the issue of whether 
waiving the job offer requirement is in the national interest is moot. Nevertheless, we will address 
this issue as it was the sole basis of the director's decision. 
Page 5 
Neither the statute nor 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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service 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 Dep 't. of Transp., 22 I&N Dec. 2 1 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 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 onprospective 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. 
The director listed the factors for consideration, noted that the petitioner was unemployed and 
concluded that the record lacked relevant evidence suggesting that a waiver of the alien employment 
certification might be in the national interest. On appeal, the petitioner asserts that he applied for work 
authorization but did not receive it and had to turn down employment opportunities. The petitioner 
submits additional reference letters and a job offer. 
While we concur with the director's ultimate decision, more discussion is warranted. 
 First, the 
petitioner works in an area of intrinsic merit, engineering. Next, we must consider whether the 
proposed benefits of his work would be national in scope. The petitioner did not initially assert what 
the proposed benefits of his work would be. He indicated on Part 6 of the petition that he proposed 
to perform a wide range of engineering duties, such as the installation, maintenance, repair, upgrade, 
and invention of machines and mechanisms. He also listed these as his duties for Plastic in Georgia. 
The initial letter from chairman of the Board for Plastic, confirms only that the 
petitioner was employed there as an engineer-technologist. The remaining letters submitted initially 
affirm the petitioner's academic success and personal character. 
On appeal, Mr. praises the petitioner's professionalism while working for Plastic and 
asserts that the company was able to reach an "agreement" with Coca Cola, but fails to 
specific accomplishment by the petitioner while at Plastic. 
 President of 
Inc., expresses an interest in hiring the petitioner as a mechanica engineer to help 
with a new patented technology." 
The following footnote in Matter of New York State Dep't of Transp., 22 I&N Dec. at 21 7 is relevant 
to our analysis. 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national interest, 
the impact of a single schoolteacher in one elementary school would not be in the 
national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sufficiently in the 
national interest for purposes of this provision of the Act. 
Id. at 217, n.3 
The record lacks evidence that the petitioner is an inventor or engineering researcher. Rather, the 
proposed duties appear to involve performing engineering duties based on the innovations of others. 
The petitioner has not explained how upgrading vehicles for a single company based on technology 
patented by others would provide more than an attenuated impact at the national level. Thus, we 
cannot conclude that the proposed benefits of the petitioner's work would be national in scope. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. Eligibility for the 
waiver must rest with the alien's own qualifications rather than with the position sought. In other 
words, we generally do not accept the argument that a given project is so important that any alien 
qualified to work on this project must also qualify for a national interest waiver. At issue is whether 
this petitioner's contributions in the field are of such unusual significance that the petitioner merits 
the special benefit of a national interest waiver, over and above the visa classification he seeks. By 
seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must 
demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. 
at 219, n. 6. 
While the petitioner may have been unable to work in the United States due to his lack of work 
authorization, it remains that he had been unemployed for nearly two years as of the date of filing the 
petition. The petitioner must already have an established track record as of the date of filing the 
petition. See 8 C.F.R. 5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Cornrn. 1971). 
Thus, even if the petitioner had obtained work authorization based on his concurrently filed visa 
petition and adjustment application, he would not be able to demonstrate eligibility for the visa 
classification sought based on work performed after the concurrent filing. Regardless of why the 
petitioner was unable to work in the United States, he has not established that his achievements in 
Georgia warrant a waiver of the alien employment certification in the national interest. Specifically, 
while the record contains letters praising the petitioner's professionalism and character, the letters fail 
to identify specific achievements or explain how the petitioner is responsible for creative innovations 
that have influenced the field of engineering. A U.S. employer could list the petitioner's education and 
experience on an application for alien employment certification. Nothing in the legislative history 
suggests that the national interest waiver was intended simply as a means for employers (or self- 
petitioning aliens) to avoid the inconvenience of the alien employment certification process. Id. at 223. 
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 alien employment certification will be in 
the national interest of the United States. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. 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 denial is without prejudice to the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.