dismissed EB-2 NIW Case: Environmental And Safety Management

identifjling data deleted to 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
- 
prevznt c tear! y urrwrrx~nted 
 U. S. Citizenship 
invasion o:'i;t.,r;onzl privacy and Immigration 
PUBLIC COY Y 
LIN 07 079 5273 1 
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. 
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. 4 103.5 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). 
Gg.-.-- 
2ohn F. Griss rn 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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 seeks to classify the beneficiary pursuant to section 203@)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153@)(2), as an alien of exceptional ability in the sciences and a 
member of the professions holding an advanced degree. The petitioner, an energy services company, 
seeks to employ the beneficiary as an environmental and safety program manager. The petitioner 
asserts that an exemption fiom 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 fiom the job offer requirement would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and copies of previous submissions. 
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. A separate finding of exceptional ability would serve no constructive purpose in this 
proceeding. 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, lOlst 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 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. 215 (Comrnr. 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. 8 204.5(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 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 
significantly above that ordinarily encountered in his or her field of expertise. 
In a letter accompanying the initial filing, 
 the petitioner's Senior Human 
Resources Generalist, stated: 
[The petitioner] is a corporation engaged in providing non-regulated and regulated 
energy services including gas, water, and electrical utilities to over one million 
residential and commercial customers in Iowa, Illinois, Minnesota and Wisconsin. . . . 
The Environmental and Safety Program Manager position requires that the beneficiary 
plan and implement cost-effective environmental and safetyhndustrial hygiene 
management plans to ensure compliance with laws and regulations. The position is 
responsible for the development, implementation and maintenance of Environmental 
Management Information System ("EMIS") for environmental compliance assurance 
and performance tracking for the company. In addition to these functions, the position 
must perform Environmental Health and Safety ("EHS') assessments and audits to 
assess performance of existing EHS programs. 
The intrinsic merit of the beneficiary's occupation is not in dispute. To establish the national scope of 
the beneficiary's work, stated: 
An effective EMIS system is essential for utility generation companies such as [the 
petitioner] to comply with it environmental reporting obligations. . . . [The beneficiary's] 
approach promises to provide large enterprise companies with a compliance system that 
can deliver tremendous efficiencies, time-saving and process improvement. 
noted the petitioner's submission of letters of support fiom witnesses in New Jersey, 
Ohio and California as evidence of the national scope of the beneficiary's work. so 
asserted that the beneficiary's "work in modifjmg existing EMIS systems is unlike anythng currently 
being done by other EHS professionals and will have (and has had already) a lasting and substantial 
effect outside of [the beneficiary's J immediate community.'' 
Along with documentation of the beneficiary's previous employment and his presentations and other 
work, the initial submission included several witness letters. Apart from one letter from a professor at 
the University of Toronto, Canada, who mostly discussed the petitioner's master's thesis, all of the 
witnesses are either officials of the petitioning company; officials of Enviance, Inc.; or members of 
Envision, which is a group composed of users of Envision technology. Given that all of these witnesses 
have worked with the beneficiary, either for the same company or at Envision, it is not clear how these 
witnesses show the impact of the beneficiary's work "outside of [hs] immediate community." 
The letters fiom officials of the petitioning company are generally similar, sometimes using exactly the 
same language. Two letters both contain this sentence: "[The beneficiary's] work has demonstrated and 
continues to demonstrate the value of using an EMlS for enterprise wide environmental compliance and 
management at larger-sized companies." Three letters contain the following sentence, or minor 
variations thereof "It would be a set back for the company EHS resources especially for Enviance 
EMIS development and maintenance if [the beneficiary] has to leave the company." 
President and Chief Executive Officer of Enviance, Inc., Carlsbad, 
California, stated: 
[The beneficiary] has made significant contributions to the development of [the 
petitioner's] environmental management system, which has been deployed on the 
Enviance platform. These contributions have benefited [the petitioner], as well as other 
power companies that regard his work as powerful and exemplary. 
. . . Enviance was the first to develop an Internet-based "on demand" compliance 
management system, and we are widely regarded as the market leader in this sector. . . . 
Companies like [the petitioner] have used the Enviance System as a platform on whch 
to implement comprehensive environmental, health and safety management systems. . . . 
Today the Enviance System is being deployed at over 1,700 facilities in 37 countries. 
I had the opportunity to attend [the beneficiary's] presentation to our 2005 Users' 
Conference, which was attended by 46 companies and 70 users. He presented the case 
study of his company's pilot-scale implementation of Enviance at three large coal fired 
generation plants. From the conceptual design to actual system configuration, [the 
beneficiary] did an excellent job of using Enviance platform in a very comprehensive 
way. He provided the conference with a superb example of how the Enviance Platform 
can deliver to large enterprise companies the tremendous efficiencies, tirne-saving and 
process improvement that comes with comprehensive compliance automation. . . . 
[The beneficiary] has used the modeling capabilities of the system to configure 
innovative "Basic Emission Blocks." These blocks make a complex multimedia 
implementation much easier. . . . [The beneficiary's] work stands as an important 
example of how innovative employees can implement the Enviance System to meet the 
diverse needs of complex facilities operating in the oil & gas, petrochemical, chemical 
process, pharmaceutical, and mechanical manufacturing industries. . . . 
In my opinion, [the beneficiary's] innovative work inside the Enviance System has 
established his company . . . as a leader in the deployment of "on demand" technology to 
meet enterprise-wide compliance management requirements. 
, Vice President of Marketing and Sales Operations for Enviance, stated: 
[The beneficiary] is currently leading the Enviance Air Compliance ABC (Activity 
Based Council) which has more than 75 participants fiom over 30 US-based, Fortune 
1000 companies. . . . [The beneficiary] assumed leadership of the Air Compliance ABC 
because of his unique knowledge and experience with Enviance and within [the 
petitioning company]. . . . 
It is through [the beneficiary's] efforts that other companies can, in a rather short period 
of time, take their environmental compliance activities to the next level. 
, Senior Manager of the EHS Department at Pfizer, Morris Plains, New Jersey, stated that 
the beneficiary's "work is resulting in a significantly less resource-intensive, more accurate and more 
rigorous approach to calculating, reporting and analyzing airborne power plant emissions regulated by 
the Clean Air Act." concluded by stating: 
The extent he developed the Enviance system for EHS data and compliance assurance 
management for his company is a leading example for other companies to follow. It 
would be a loss of a leading expert in EMIS field if [the beneficiary] has to leave the 
country. I strongly recommend CIS to grant [the beneficiary] a National Interest Waiver 
so that he can continue his work in the U.S. on a permanent basis. 
Senior Engineer with American Electric Power (AEP), Columbus, Ohio, stated: 
AEIP is an energy utility company . . . [with] more than 5 million customers in 1 1 states. 
. . . Like [the beneficiary], I also manage an EMIS project for AEP. 
. . . He made an effective use of the Enviance platform to configure [the] system for 
complex emission calculations and reporting needs for extensive . . . regulations. His 
emission block-based structural approach . . . is a pioneer work which can be adopted by 
other utilities to compliance assurance and reporting. 
quoted above. The same passage, with grammatical corrections (for instance, changing "the extent he 
developed" to "the extent to which he developed"), appears in a letter from - of Sempra 
Energy, San Diego, California. 
The witness letters appear to indicate that the beneficiary's contribution lies not so much in any 
innovation on his own part, but rather on imaginative use of the existing Enviance platform. The letters 
do not provide specific data or details to show how the beneficiary's work has significantly improved 
safety or environmental compliance at the petitioning company, or the extent to which other companies 
have implemented the beneficiary's work. 
On March 4, 2008, the director issued a request for evidence, instructing the petitioner to "submit any 
available additional documentary evidence that, as of the petition priority date, the beneficiary had a 
degree of influence on his field that distinguishes him from others in your field with comparable 
qualifications." The director asked the petitioner to explain "how [the beneficiary's] utilization of an 
existing program sets his past and projected achievements at a higher level than others in his program." 
In response, the petitioner submits Mer documentation regarding the beneficiary's presentations at 
conferences and professional gatherings. While such presentations present the opportunity for wider 
influence, they are not self-evident proof of such influence. 
Regarding the beneficiary's use of existing Enviance software, counsel argued that the beneficiary's 
"development and use of Enviance is a stat[e]-of-the-art approach." Counsel, however, also asserted 
that "Enviance is a sohare platform that is configured and designed by its users to adapt to the users' 
Page 7 
particular needs," which seems to indicate that the beneficiary's modifications of the platform are 
specific to his employer, and that all users must make custom modifications to suit their particular 
needs. The observation that other users can adopt the beneficiary's work is not evidence that other users 
have actually done so. 
Counsel asserted: "EHS professionals from all over the country travel to hear [the beneficiary] speak on 
the topic of EHS compliance, and specifically, his work in implementing EHS compliance at" the 
petitioning company. While the beneficiary has spoken at national gatherings, this does not mean that 
the other attendees traveled to the meetings specifically to hear the beneficiary's presentations. 
Along with copies of some previously submitted letters, the petitioner submitted two new witness 
letters. -J President of the Air and Waste Management Association, Pittsburgh, 
Pennsylvania, stated that the petitioner "has made significant contributions in EHS field," but did not 
identi@ or discuss these contributions. 
an environmental engineer with DTE Energy Services, Ann Arbor, Michigan, provided 
more details about the beneficiary's work: 
I know [the beneficiary] fkom interacting with him on the Enviance Activity Based 
Council (ABCs). . . . [The beneficiary] helped me when I was in the process of setting 
up Enviance for my company. . . . 
The US EPA Toxic Release Inventory . . . (TRI) is an annual report which is compiled 
and submitted to the EPA if applicable facilities exceed the threshold for the toxic 
compounds released to the environment. . . . 
[The petitioner] configured the TRI system for his company in a way that facility TRI 
emission Form R reports get prepared automatically in the system by simply loading of 
fuel and raw material consumption data for the facilities into 'the system. This 
comprehensive emission block based approach calculates the emissions released into air, 
water and waste based on fuel and materials consumptions during a year and loads the 
data into the US EPA electronic TRI forms within the system. This not only reduces 
significant amount of time and resources for data manipulation but also brings 
consistency, accuracy and transparency. Additionally, accumulative emission data 
reports for the whole company are available centrally for management review and 
developing emission reduction strategies. 
The extent he developed the Enviance system for greenhouse gas (GHG) emission data 
management for his company is a leading example for other companies to follow. It 
would be a loss of a leading expert in EHS field if [the beneficiary] has to leave the 
country. 
A nearly identical passage ends 
 letter: 
The extent [the beneficiary] developed the Enviance system for EHS data and 
compliance assurance management for his company is a leading example for other 
companies to follow. It would be a loss of a leading expert in EMIS field if [the 
beneficiary] has to leave the country. 
The repeated appearance of similar language throughout this proceeding raises questions about the 
source of the letters; clearly the witnesses did not write the letters independently. 
The director denied the petition on September 30, 2008. The director acknowledged the substantial 
intrinsic merit of the beneficiary's occupation, but found that the beneficiary's work lacks national 
scope because "the petitioning entity is clearly regional," with a range covering parts of only four states. 
The director also asserted that the beneficiary's expertise with the Enviance platform, which he did not 
create, essentially amounts to advanced training that could be listed on an application for labor 
certification. The director found that the petitioner had not shown that a waiver of the job offer 
requirement would be in the national interest. 
On appeal, counsel asserts: 
[The beneficiary] build a complex compliance tool on simple building blocks, allowing 
a facility like [the petitioner] (as well as a multitude of other facilities in the oil and gas, 
petrochemical, chemical process, pharmaceutical, and mechanical manufacturing 
businesses) to implement a comprehensive system across multiple facilities and plants. 
Simply put, [the beneficiary's] work was and continues to be critical in order for [the 
petitioner] to meet compliance obligations and perform emission control planning. . . . 
The evidence submitted demonstrates that for the entirety of [the beneficiary's] career, 
he has developed, £iom the ground-up, innovative EHS programs. [The beneficiary] 
leads the Enviance Air Compliance Activity Based Council. 
Most notably for purposes of this Petition, though, is [the beneficiary's] influence on the 
EHS field as a whole. The record is clear that representatives of leading and nationally- 
known companies unrelated to [the petitioner] are not only using [the beneficiary's] 
work as a guidepost for their own EHS compliance activities, but are also quick to 
recognize his pioneering work in the field. 
(Citations omitted.) The petitioner submits no new evidence on appeal. Counsel's arguments rest, for 
the most part, on previously submitted witness letters. Those letters indicate that Enviance has 
developed a basic software platform, whch individual users then adapt to their particular needs. The 
beneficiary has done this for his employer, and shared some of his ideas with other Enviance users. The 
beneficiary's work in this area and his presentations at professional meetings extend his scope beyond 
the petitioner's limited geographic range. We can therefore find that his work is national in scope. 
We cannot, however, find that the beneficiary stands out in his field to an extent that would justify a 
national interest waiver. We acknowledge that the beneficiary has developed EHS programs, but this 
appears to be a basic requirement of his job, rather than a singular achievement. 
With respect to the beneficiary's expertise with the Enviance platform, exposure to advanced 
technology constitutes, essentially, occupational training which can be articulated on an application for 
a labor certification. Special or unusual knowledge or training, while perhaps attractive to the 
prospective U.S. employer, does not inherently meet the national interest threshold. The issue of 
whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. Matter ofNew York State Dept. of Transportation at 221. 
Although many letters have included passages describing the beneficiary's work as "a leading example 
for other companies to follow," this is not evidence that other companies have, in fact, followed the 
beneficiary's example. Also, while it is certainly advantageous for individual Enviance platform users 
to save time when preparing TRI forms, the petitioner has not persuasively shown that the importance 
of the beneficiary's work in this area merits a national interest waiver. Simply identifying a benefit 
arising from the beneficiary's work does not show his eligibility for the waiver. The record indicates 
that this benefit is mostly restricted to other Enviance clients. 
As we explained earlier in this decision, exceptional ability in one's field is not sufficient to qualify 
an alien for the waiver. Therefore, assertions that the beneficiary has obtained superior results are 
not automatic evidence of eligibility for the waiver. The petitioner has shown that the beneficiary 
has made contributions within his field, but the record does not persuasively establish that he is the 
influential leader that some claim he is. 
As is clear fiom 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 fiom 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. $ 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 a labor certification issued by the 
Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.