dismissed EB-2 NIW Case: Environmental Engineering

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of~dmlirstratlve Appeals MS 2090 
"enfifying data deleted to 
 Washington, DC 20529-2090 
Prevent clearly un 
 ananted 
 U. S. Citizenship 
'nvasio~' of oerconaj or;,,ack 
 and Immigration 
Services 
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. $ 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. 
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. 5 103.5 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. 9 103.5(a)(l)(i). 
kkf,?i:inistrative 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(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced 
degree. The beneficiary seeks employment as an environmental engineer with the Bioengineering 
Group, Inc. 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. 
On appeal, the petitioner argues that the director's decision has serious procedural flaws. 
Part 1 of the Form 1-140 petition identifies I Salem, Massachusetts, as 
the petitioner. Review of the petition form, however, indicates that the petitioner is the attorney who 
represents both the Bioengineering Group and the beneficiary. An applicant or petitioner must sign 
his or her application or petition. 8 C.F.R. 5 103.2(a)(2). In this instance, Part 8 of the Form 1-140, 
"Signature," includes the name, telephone number, and electronic mail address of the attorney, rather 
than the company. Thus, the attorney, and not his client, has taken responsibility for the content of 
the petition. This will not affect the adjudication of the appeal, because the record shows that the 
attorney who filed the petition also signed the Form I-290B Notice of Appeal. Thus, the appeal has 
been properly filed. 
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 beneficiary 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. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or corresponding 
sections of ETA Form 9089), in duplicate. The record does not contain this required document, and 
therefore the petitioner has not properly applied for the national interest waiver. The director, 
however, did not raise this issue. We will, therefore, review the matter on the merits rather than 
leave it at a finding that the petitioner did not properly apply for the waiver. 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 (Commr. 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. 5 204.5(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 offerllabor 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 petitioner filed the petition on July 3 1, 2007. The petitioner's initial submission included a 15- 
page brief, most of it contesting Matter of New York State Dept. of Transportation. The petitioner 
essentially repeats these arguments on appeal, and we shall address them in that context. 
The petitioner asserted that the Bioengineering Group "is a distinguished leader in environmental 
engineering," and stated: 
The work being done by [the beneficiary] . . . is essential to the protection of the city 
and port of New Orleans, the port that handles all river commerce flowing down the 
Mississippi River, and thus a significant component of the entire United States 
economy. Furthermore, the work that [the beneficiary] is doing in the New Orleans 
area will have applicability to other coastal areas that are subject to being ravaged by 
hurricanes. 
The petitioner asserted that the beneficiary's "substantial contributions" justifl the waiver. 
Apart from documentation of the beneficiary's academic degrees, the remainder of the petitioner's initial 
submission consists entirely of witness letters. 
Three of the witnesses know the beneficiary from his studies at the University of New Orleans (UNO). 
now an associate professor at the University of Dubuque, stated: 
Until 2004, I was an associate professor at the University of New Orleans (UNO) where 
[the beneficiary] was a Ph.D. student. . . . 
During [the beneficiary's] graduate studies, I worked with him on research projects. . . . 
[The beneficiary] combines an unusual background in biology, hydrology, computer 
simulation, and environmental engineering. His expertise is particularly valuable in the 
aftermath of Hurricane Katrina, as the issues of reconstruction require an interdisciplinary 
approach, for which he is well suited. 
[The beneficiary] is one of the very few experts in the world with specific expertise in 
the Lake Pontchartrain Basin surrounding the New Orleans area. Combined with his 
interdisciplinary background, [the beneficiary] can make an unmatched contribution to 
the national interest. 
I met [the beneficiary] at the University of New Orleans . . . while he was conducting his 
doctoral research. . . . 
[The beneficiary] has expertise and extensive experience in the areas of water quality 
modeling, wetland science, hydrological and hydraulic engineering, watershed 
modeling, stormwater management, and stream restoration. . . . He is a key member of 
the team in charge [of] the NEPA assessment study for the Inner Harbor Navigation 
Canal (IHNC) in the City of New Orleans. 
 He will also be involved in various 
capabilities during the design and construction phase of the affected levee systems in 
New Orleans. . . . [The beneficiary's] research experience has made him a critical 
member of a[n] engineering, design and research program dedicated to developing 
environmental engineering approaches that are highly relevant to national interests of 
the United States. 
stated that the beneficiary's "work has been accepted in leading peer-reviewed 
journals," but the petitioner's initial submission included no evidence to support this claim. 
I have known [the beneficiary] since 2002 when we met at the University of New 
Orleans (UNO) while I was doing my masters in Civil Engineering. 
My job involves performing hydraulic and hydrologic modeling analysis for various 
streams in watersheds and propos[ing] preventive and corrective actions to rectify the 
issues related to stormwater management. At UNO, I was part of the same research 
group [as the beneficiary] and for that reason we have worked closely with each other on 
various projects. . . . 
[The beneficiary's] technical expertise was quite evident when we were working 
together at UNO. He has since gained valuable experience in watershed management, 
stream restoration, wastewater treatment methods, coastal restoration and various 
innovative methods in managing stormwater. . . . He will be extensively involved in the 
National Environmental Policy Act assessment studies for the Inner Harbor Navigation 
Canal, development of disaster response methods and better lev[ee] systems in the City 
of New Orleans and the surrounding areas. 
[The beneficiary's] expertise classifies him as a person performing valuable work to 
support a key national priority, namely the improved hurricane protection systems in 
coastal Louisiana. . . . [Hlis presence on ow staff was a key factor in allowing us to win 
and to perform our work to date among a competitive field of internationally top ranked 
engineering firms. [The beneficiary] has recently moved back to New Orleans where he 
continues to provide effective technical support through my firm under contract to the 
Army Corps of Engineers. I would like to offer detailed confirmation that [the 
beneficiary] is internationally recognized as an expert in the hydrology and hydraulics of 
the Greater New Orleans area, and in particular the Lake Pontchartrain Basin system 
which was involved with Katrina-related city flood effects. . . . 
[The beneficiary] developed some of the baseline modeling of water quality fate and 
transport in the Lake Pontchartrain Basin, during normal weather as well as storm 
events. . . . He has been playing for the past six months a key role as Project Manager for 
the environmental compliance process for the improvements for hurricane protection 
measures on the Inner Harbor Navigation Canal in New Orleans and his continued 
contributions are crucial to the progress of this project which is identified as the number 
one priority element of the short term hurricane protection strategy for New Orleans. 
While 
 clearly considers the beneficiary to be highly qualified in his field, her letter 
contained no "detailed confirmation that [the beneficiary] is internationally recognized" as she claimed. 
Bioengineering Group, stated: 
I joined the Bioengineering Group in January 2006 at which time I became [the 
beneficiary's] immediate supervisor. . . . 
We are continually challenged to hire and retain individuals of [the beneficiary's] 
character and abilities in the very competitive market of environmental consulting. . . . 
As you are aware there is a critical shortage of qualified engineering professionals at this 
time. Recruitment of talented researchers and engineers is difficult at best in today's 
competitive climate. [The beneficiary] in particular has conducted important research 
regarding the salinity levels in Lake Pontchartrain while a graduate student in 
environmental engineering at the University of New Orleans. This research is currently 
being used in the overall environmental evaluations we are currently performing 
regarding the closure of the Mississippi River Gulf Outlet (MRGO) and potential design 
of floodgate structures along the Gulf Intercoastal Water Way (GIWW) and Mississippi 
Gulf River Outlet. [The beneficiary] is a vital member of my product delivery team for 
this vitally important work. 
The national interest waiver is not warranted solely for the purpose of ameliorating a local labor 
shortage, because the labor certification process is already in place to address such shortages. See 
Matter of New York State Dept. of Transportation at 21 8. We will give the petitioner's assertions due 
consideration, but the claim of a worker shortage is an argument for obtaining a labor certification, not 
for waiving that requirement. 
Interdisciplinary Coordinator for the Bioengineering Group, stated that the 
beneficiary: 
Brings a variety of engineering skills developed in both a research capacity, dealing with 
air and water quality issues including emissions and particulate sampling and fate and 
transport models for pollutants in Lake Pontchartrain, and his varied practical 
experience. As scientist and environmental engineer at The Bioengineering Group he 
has been involved in a wide variety of projects where he integrated sound engineering 
practice through computer modeling with his extensive knowledge of chemistry and 
natural processes. His efforts have produced cost effective solutions to a variety of 
complex problems relating to stream and wetland restoration, water quality 
improvement and stormwater management. 
To accomplish the necessary engineering analysis and design that restoration of the gulf 
coast demands requires the talents that [the beneficiary] has demonstrated on the many 
projects he has successfully completed as a Bioengineering Group employee. The 
organization considers him to be our most knowledgeable employee in the areas of 
computer modeling and simulation of essential processes such as sediment and pollution 
transport that relate directly to the restoration of the gulf coast. He is an integral 
member of our team of specialists assigned to this important work and his contribution is 
essential to its successful completion. 
With respect to the assertion that the Bioengineering Group requires the beneficiary's continuing work 
on current projects, we note that the beneficiary already holds H-1B nonirnrnigrant status that permits 
him to work for the Bioengineering Group through September 30, 2012. The denial of the national 
interest waiver does not affect or shorten his nonimrnigrant status. 
Bioengineering Group, stated: 
I first met [the beneficiary] in August 2006 at a three-day Bioengineering Group 
corporate retreat in Salem, Massachusetts. . . . Upon his arrival [in Louisiana], we 
developed an even closer collaborative relationship. . . . 
[The beneficiary] has had a rich diversity of first-hand project experience in several 
states in the U.S. where he has been devising data collection, assessment and monitoring 
systems, computer simulation modeling, and imaginative engineering solutions. . . . In 
terms of his recent work with the Corps of Engineers, he and his co-workers, 
understandably, are under intense pressure to complete urgently needed and quite 
extensive hurricane protection and rebuilding projects quickly, effectively, and on 
budget. . . . By drawing upon his many talents, skills, knowledge, and experience, his 
engagement with this challenge will enable him to make an important contribution to 
national security. . . . His continuing research and teaching interests coupled with the 
scope and breadth of his project activities should continue to prepare him for future 
leadership positions in both public and private sectors. 
On October 23, 2008, the director issued a request for evidence (RFE), instructing the petitioner to 
submit further evidence to establish "a past record of specific prior achievement that justifies projections 
of future benefit to the national interest." The director specifically requested copies of published articles 
showing independent citation of the beneficiary's work. In response, the petitioner asserted: "The 
Department of Labor (DOL) regulations found at 20 C.F.R. $ 656.17(h) prohibit the inclusion of job 
requirements beyond those normally found in the DOL's O*Net." The petitioner argued that "the 
employer's requirements for this job . . . all combine to preclude eligibility for an individual labor 
certification" because those requirements exceed the minimum requirements found in the O*Net 
database. Specifically, the petitioner asserts that the "employer has a need for an employee with a 
PhD," among other qualifications. The record shows that the employer hired the beneficiary seven 
months before he received his Ph.D. degree. Clearly the job did not require a Ph.D. when the company 
hired the beneficiary; the employer may strongly prefer a Ph.D., but they cannot permissibly expand the 
"minimum requirements" to match the beneficiary's current level of education, training and experience. 
The employer's inability to tailor the labor certification to match the beneficiary's qualifications does not 
imply that the employer cannot obtain a labor certification within the confines of regulatory 
requirements - particularly in the face of "a critical shortage of qualified engineering professionals" that 
would narrow the field of potential job applicants. 
More significantly, the petitioner's arguments, above, revolve not around the beneficiary, but around 
the employer's stated needs and preferences. In this respect, the request for the waiver is tied not 
specifically to the beneficiary, but to the position that the beneficiary hopes to fill, as though any 
alien who qualifies for that position also necessarily qualifies for a national interest waiver. We 
reject this reasoning. 
The inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for 
a national interest waiver; the petitioner still must demonstrate that the self-employed alien will 
serve the national interest to a substantially greater degree than do others in the same field. Matter 
of New York State Dept. of Transportation at 218, n.5. Even then, the petitioner has not shown that a 
labor certification cannot be obtained for the beneficiary; the petitioner has shown only that the 
regulations prohibit the employer from tailoring a labor certification application to match a given 
alien's qualifications. 
The petitioner submitted a database printout to show one citation each for four of the beneficiary's 
published articles. The petitioner also submitted copies of a book chapter that cited two of the 
beneficiary's articles, and an article that cited another of the beneficiary's works. It is not clear 
whether these three citations overlap with the five citations documented on the database printout, 
Page 9 
because the printout simply counted the citations without identifying where they appeared. All but 
one of the beneficiary's cited articles relate to dry abrasive blasting; the petitioner has not explained 
how this relates to the beneficiary's intended work for the Bioengineering Group. The listing and 
timing of the beneficiary's publications indicate that the beneficiary's doctoral research focused on 
blasting abrasives, but his curriculum vitae does not suggest that the beneficiary has continued to 
specialize in that area. 
The remainder of the petitioner's response to the WE consisted of witness letters. -~ 
stated: 
[The beneficiary] was a critical member of my experimental research team dedicated to 
developing data and approaches that are highly relevant to the national interests namely 
human safety and environmental interests of the United States: i) developing water 
quality data for London Avenue Canal that discharges into the south shore of Lake 
Pontchartrain; and ii) development of predictive models to address water quality issues. 
I served as the advisor for [the beneficiary's] MS thesis work titled "Water Quality 
Model of a Storm Water Channel." . . . [The beneficiary's] work was a great step 
towards analyzing and quantifying the hydrodynamics, and water quality impacts of 
various storm events in the Canal and Lake Pontchartrain. . . . The results of his study 
served as an important input in formulating regulations pertaining to swimming and 
fishing in Lake Pontchartrain. [The beneficiary's] research provided data and model 
formulations that are required to address water quality issues, biodiversity, critical 
habitats, and coastal restoration strategies. His work was used and is being used as a 
reference by other Graduate students who are specializing in the field of water quality 
and hydrodynamic modeling. 
I am aware [that the beneficiary] has spent the past three years, working with 
Bioengineering Group Inc. . . . [The beneficiary] has been working on projects including 
sustainable design of sites across the nation, water quality analysis and modeling of 
watersheds in the New England area, TMDL analysis of impaired water bodies in the 
Northeast, fluvial geomorphological analysis, hydrological and hydraulic (H & H), and 
sediment transport modeling pertaining to restoration of streams and shorelines in 
multiple states. . . . I would enthusiastically rank him as one of the significant 
contributors to the field of environmental engineering. 
"most significant contribution was the evaluation of the performance of six different abrasives in 
blasting rusted and painted steel panels used in maritime industry. Emissions data generated by him 
fills a critical gap in the performance characterization literature for industrial processes, a cause of major 
pulmonary diseases." Prof. Kura said almost nothing about the beneficiary's present work, except for 
the general assertion that the beneficiary "has been working on environmental impact assessment of 
proposed hurricane protection activities in the Louisiana Gulf Coast." 
of Cardiology, stated: 
The human health effects of particulate air pollution have been reported in great detail, 
whereas the effects of particulate emission from industrial sources have not been 
documented so extensively. [The beneficiary], as part of his doctoral research, evaluated 
the particulate emissions (in various size fractions) from dry abrasive blasting . . . 
[which] is apparently one of the widely used industrial processes contributing to air 
pollution. . . . 
Towards [the] end of 2005, 
 academic advisor of [the beneficiary's] research 
efforts, approached me with the idea of establishing a Particulate Matter Research 
. A- 
 - 
Center at University of New Orleans, LA in collaboration with the LSU Health Sciences 
Center . . . [with me] as co-investigator. . . 
Thus in conclusion, I feel that [the beneficiary] has been an integral part of a research 
team continuously involved in investigating and providing answers to complicated 
questions facing the pulmonary and cardiac health sector. 
The record does not show that the beneficiary has continued to pursue the particulate pollution research 
that he conducted during his doctoral studies. Indeed, when the petitioner first filed the petition, the 
focus was entirely on the importance of protecting New Orleans fiom severe storms. 
In her second letter, echoed the petitioner's argument that the Bioengineering Group's 
hiring standards are so high "that it would be im ossible for us to impose our actual hiring standards as 
part of the foreign labor certification process." halso called the beneficiary "an unusually 
gifted professional with skills far beyond those normally found in others with similar degrees." She did 
not describe the beneficiary's specific contributions in any detail. 
[The beneficiary] is an expert at developing sustainable strategies for water quality 
enhancement, natural systems design, and sound watershed management. Additionally, 
he has creatively implemented low costnow maintenance stormwater management 
strategies that harness natural processes, relying on self-repair and adaptation, rather 
than external maintenance procedures. These make him a very critical and essential 
resource to Bioengineering Group's sustainable design team. 
As a recent example of [the beneficiary's] contribution to the field, BioGroup designed 
and is overseeing construction of a LEED' (Leadership in Energy and Environment) 
Page 11 
certified Department of Public Works (DPW) facility in the Town of Lexington, MA. 
[The beneficiary] was the Chief Engineer who worked on the hydrological and 
sustainable stormwater management aspects of the project. . . . 
The significance of the project included: obtaining Lexington's first municipal green 
(LEED' Certified) building; minimizing water quality impacts to the already 
contaminated North Lexington Brook; and providing the town with a sustainably 
designed facility. . . . [The beneficiary] was involved in incorporating sustainable storm 
water management and water quality treatment into the site design. As project engineer, 
he employed a range of stormwater management measures to reduce the impervious 
areas (parking lots and buildings), distribute the runoff from the paved area, and meet 
the Conservation Commission's mandate for stormwater quality, utilizing bioretention 
basins, emergent wetlands, porous pavement, water quality treatment units, a vegetated 
roof and roofwater harvesting system, and subsurface infiltration systems. 
also discussed a project in Cambridge, Massachusetts, but he never mentioned any projects 
in Louisiana. 
"a designer and construction manager for civil engineering, environmental 
remediation and wetland restoration projects," stated: 
I became aware of [the beneficiary] in May, 2007 while reviewing designs for civil 
engineering projects including the Department of Public Works facility for the Town of 
Lexington (Massachusetts) and the Massachusetts Department of Youth Services facility 
in Roslindale, Massachusetts. [The beneficiary] was instrumental in design 
development and achievement of performance requirements for both these projects. 
Specifically, [the beneficiary] prepared the hydrological models, evaluated the pollutant 
loadings and selected and sized the stormwater control features. I was particularly 
impressed by the quality of his work, in that [the beneficiary] advanced clear vision for 
the whole project design through all the control features and achieved a very hgh level 
of performance for the site development. [The beneficiary] was the technical leader on 
these projects, leading other staff in the design preparation and development. 
I am familiar with [the beneficiary's] research, modeling and design work having been 
involved in construction of projects based upon his work. . . . 
was hired to run field operations and construction oversight for two 
projects designed by Bioengineering Group Inc in 2006. The remedial designs for these 
sites were based on [the beneficiary's] hydrological and hydraulic modeling results. The 
two sites are the USEPA Superfimd Site, Richardson Hill Road Landfill, Herrick 
Page 12 
Hollow Creek Restoration, Sidney, NY and Mill Creek Restoration Supplemental 
Environmental Plan 2: Elmwood Place Landfill Site, Cincinnati, OH. 
At the Herrick Hollow site [the beneficiary] performed detailed hydrological (HEC 
HMS) and hydraulic (HEC RAS) modeling to assess existing conditions in the creek 
channel, stream banks and riparian areas. . . . [The beneficiary's] analysis and design 
took a more holistic approach than previously failed designs by three other Consulting 
firms. . . . [The beneficiary] was aware of the dynamic nature of the ecosystem and 
created a design capable of adapting to these changes ensuring the success of the project. 
This is something rare that I do not find in designs from other engineers that I work with 
on a daily basis. 
For the Mill Creek Restoration, [the beneficiary] again performed hydrological and 
hydraulic calculations required for the location and design of two J-hook vanes as part of 
the restoration of Mill Creek adjacent to the Elmwood Place landfill. . . . [The 
beneficiary] provided a simple solution to a very complex problem. mle on site, there 
were very few questions regarding how the J-hooks were to be built. This resulted in 
minimal change orders and finishing the construction within schedule - two primary 
hassles that Construction Contractors like myself face every day. 
I strongly believe that [the beneficiary] is an extraordinary researcher and that he has 
unique abilities that are not normally encountered in this field. . . . 
I feel that [the beneficiary] is one of the most pragmatic engineers in the field of 
environmental modeling. . . . [The beneficiary's] work is an example which should be 
followed by other consulting firms and engineers. 
The witness letters contain little, if any, discussion of the beneficiary's work in Louisiana, even though 
the petitioner's initial submission focused almost exclusively on that work. The petitioner has, thus, 
significantly shifted the focus of the waiver application, from the importance of protecting New Orleans 
from severe weather to the general proposition that the beneficiary is a superior engineer. 
The director denied the petition on March 6,2009. The director found that the beneficiary's occupation 
has substantial intrinsic merit and is national in scope, but that the petitioner had not shown that the 
beneficiary "has exhibited a substantial degree [of] influence on his field of endeavor." The director 
noted the minimal citation of the beneficiary's published work. 
On appeal, the petitioner makes no reference to the specific facts of this proceeding apart from three 
introductory sentences near the beginning of the brief. Instead, the bulk of the appellate brief is devoted 
entirely to criticism of the format of the RFE, and to an attack on Matter of New York State Dept. of 
Transportation. 
The petitioner protests: "The Director issued a template Request for Evidence, used more than ten times 
by the CIS each year that did not bear an OMB approval number. . . . [Tlhe use of 'broad brush' RFEs 
clearly violates CIS policy as well as the explicit terms of the Paperwork Reduction Act'' (the 
petitioner's emphasis). Because no precise evidentiary guidelines exist for the national interest waiver, 
it would be difficult for the director to request specific documents (rather than broad types of evidence) 
in the WE. Even then, the petitioner's objection to the content of the WE does not demonstrate that the 
director should have approved the petition. At best, the issuance of a severely deficient RFE would 
warrant a remand for a new decision. We do not find the WE to be so deficient that a remand would be 
in order. The petitioner's objections regarding the Office of Management and Budget are administrative 
in nature and fall outside the scope of this proceeding, and therefore we will not explore the question of 
whether the WE does, in fact, fall within the scope of the Paperwork Reduction Act. 
The petitioner argues: "The Petitioner has put forward a prima facie case of eligibility and has 
submitted competent, admissible, and persuasive initial evidence," thereby meeting the burden of proof. 
This is a circular argument; the petitioner asserts that the beneficiary is eligible for the waiver, and then 
uses that assertion to prove that the beneficiary is eligible for the waiver. The petitioner cannot prove 
his case simply by presuming the point that he seeks to make. As such, ths argument does not prove 
that the initial submission was, in fact, sufficient. The sufficiency of the petitioner's evidence is very 
much at issue in this matter; the petitioner cannot avoid this issue simply by declaring that the evidence 
obviously shows that the beneficiary qualifies for the waiver. 
Complicating the issue is that the petitioner's response to the WE relies on factors that are almost 
entirely different from the grounds previously set forth in the initial submission. This very significant 
shift means that the petitioner has not laid out a consistent, coherent national interest claim. 
The petitioner devotes much of the appellate brief to allegations that Matter ofNew York State Dept. 
of Transportation misconstrued Congressional intent. Rather than dissect these arguments in detail, 
we will observe that Congress is presumed to be aware of existing administrative and judicial 
interpretations of statute. See Loritlard v. Pons, 434 U.S. 575, 580 (1978). 
In this instance, Congress's awareness of Matter of New York State Dept. of Transportation is a 
matter not of presumption, but of demonstrable fact. In 1999, Congress amended section 203(b)(2) 
of the Act in direct response to the 1998 precedent decision. Congress, at that time, could have 
taken any number of actions to limit, modify, or completely reverse the precedent decision. Instead, 
Congress let the decision stand, apart from a limited exception for certain physicians, as described in 
section 203(b)(2)(B)(ii) of the Act. Because Congress has made no further statutory changes in the 
decade since Matter of New York State Dept. of Transportation, we can presume that Congress has 
no further objection to the precedent decision. 
Furthermore, 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act. Therefore, the petitioner cannot realistically argue that 
the director erred by following Matter of New York State Dept. of Transportation; the regulations 
required the director to follow it. The petitioner's disagreement with Matter of New York State Dept. 
of Transportation does not affect its standing as binding precedent. 
The petitioner has established that the beneficiary is a skilled environmental engineer, valued by his 
employer and colleagues. Simply being good at what he does, however, is not a sufficient basis for 
the special benefit of a national interest waiver. As we have already noted, the statutory language 
clearly indicates that exceptional ability does not result in automatic exemption from the job offer 
requirement. The petitioner has argued that the beneficiary should not have to offer any benefit to 
the United States in order to qualify for the waiver, and has emphasized the difficulty that the 
employer would encounter in trying to phrase an application for labor certification in such a way that 
no one but the beneficiary qualifies for the position. Waiving the job offer requirement in such an 
instance would clearly be in the employer's interest, but it does not follow that it is equally in the 
national interest. 
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 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. 5 1361. The petitioner has not sustained that burden. 
This decision 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.