dismissed EB-2 NIW Case: Finance

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
EAC 06 043 50293
Office: TEXAS SERVICE CENTER Date: NOV 0 8 Z007
INRE: 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. § I I53(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.
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I Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the employment"-basedimmigrant 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The
petitioner seeks employment as an equity research analyst. 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 qualifies for classification as a
member of the professions holding an advanced degree, but 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 asserts that the director failed to consider her accomplishments. For the
reasons discussed below, we uphold the director's fmding that the petitioner has not demonstrated that
a waiver of the alien employment certification·is warranted in the national interest. Specifically, the
petitioner relies almost entirely on her own self-serving resume and copies of internal reports and
presentations unsupported by more objective evidence of the petitioner's impact in her field, such as
letters from independent members of the field who have been influenced by the petitioner explaining
the significance of her work or media reports on the novelty and significance of projects on which the
petitioner has worked.
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 ofjob 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 petitioner holds a Master's degree in Accounting and Finance from the London School of
Economics and Political Science, University of London. The petitioner's occupation falls within the
-------------------------....------ ..'-'--- --" .,
Page 3
pertinent regulatory defInition of a profession. The petitioner thus qualifIes as a member of the
professions holding an advanced degree. The remaining issue is whether the petitioner has established
that a waiver of the job offer requirement, and thus an alien employment certifIcation, is in the national
interest.
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress
did not provide a specific definition of the phrase, "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, WIst Cong., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states, in pertinent part:
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. 215,217-18 (Commr. 1998)(hereinafter
"NYSDOT"), 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. Id at 217. Next, it must be shown that the proposed benefIt will be national
in scope. Id 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. Id at 217-18.
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. Id. at 219. 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. Id
The director did not contest that the petitioner works in an area of intrinsic merit, equity research
analysis, and we fInd that she does. Next, the petitioner must demonstrate that the proposed benefits
of her work would be national in scope. Initially, the petitioner asserted:
The prospective research reports which I will be writing will be covering themes from
both the US and the UK and Europe asset management markets and will be
distributed nationally throughout the US, therefore assisting both US investors who
are interested in gaining exposure to the domestic asset management market as well as
US investors aiming to achieve international diversification through investing in the
UK and European asset management stocks - at present, such cross-continental
research product offering is lacking from the US market, yet, demand for such is
strong, as indicated by many of my current clients.
The only information in the record regarding the petitioner's future employment in the United States
is various electronic correspondence with individuals at oncerning what appears to be
a temporary position.l The correspondence does not specifically discuss what the petitioner's job
duties would be. In response to the director's request for additional evidence, the petitioner notes
that s a large company with 15,160 financial advisors in 700 offices in 36 countries
and that any client "interested in investing in asset management sector stocks will benefit from the
investment ideas presented in the reports that I will be writing." While may be a large
company with clients nationwide and even worldwide seeking to invest nationally and
internationally, the petitioner has not sufficiently explained how her internal reports will benefit the
field of equity research analysis at the national level.
Even if we concluded that the petitioner's potential employment at a company with a large client
base is sufficient to conclude that the benefits of her work would be national in scope, it remains 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. Id. at 218. Moreover, it cannot suffice to
state that the alien possesses useful skills, or a "unique background." Id. at 221. Special or unusual
knowledge or training does not inherently meet the national interest threshold. The issue of whether
similarly-trained workers are available in the United States is an issue under the jurisdiction of the
Department of Labor. Id.
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 she seeks. By seeking an extra benefit, the petitioner assumes an extra element 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. In evaluating the petitioner's achievements, we note that
original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
I The position appears to be temporary because the representatives at dismiss the possibility of
seeking an immigrant visa and note the difficulties in securing a nonimmigrant visa for the petitioner.
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Page 5
Initially, the petitioner asserted:
Due to the vast size and dominance of the US equity market, US research analysts
have traditionally been, and remain so, focused exclusively on the domestic market.
The asset management industry, however, has rapidly evolved over the past years, and
while geographic borders have become somewhat blurred, different themes prevail at
the different sides of the Atlantic - clients increasingly demand comprehensive global
research products and it is no longer satisfactory to be knowledgeable in just one
geography. In this respect, I have the unique advantage over my US colleagues to
have acquired experience in the UK and the European markets while at the same time
have gained exposure to the US players through their presence in the UK. Therefore,
what sets me apart from my US peers and what no other research professional at my
level is able to offer to clients, and which I can, is a 'one-stop' integrated global
coverage of the sector and thorough knowledge of the local specifics of the asset
management industry across its key markets.
The petitioner submitted her self-serving resume, her degrees and certifications, the above­
mentioned electronic correspondence and copies of presentations she has given. On August 3, 2006,
the director requested evidence of "specific prior achievements in the field which would justify the
projected future benefit of the alien to the national interest." The director inquired as to how the
petitioner had influenced the financial field as a whole, whether her work has been recognized by
experts in the field, whether she had published any work and how her work compares with the work
of others in the field.
In response, the petitioner references a u.S. equity research scandal arising from the recommendation
of bad stocks in 1999 and 2000, which resulted in an investigation that ended in 2004 and new
procedures that have "gradually" restored "fairness, and even integrity, to financial markets." She
asserts that this history demonstrates the importance of independent research analysts with no "conflict
of interest." She then asserts that she fulfills the "new generation" of equity research criteria due to her
independence (through her work at a company that exclusively provides independent mergers and
acquisitions advice) and her in-depth knowledge of the asset management sector (through practical
experience and education). She further notes that her employer in the UK, employed
less than 50 individuals and was ranked number one and number three in 2004 and 2005, a reflection
on all of its employees. The petitioner submits the ranking compiled by SNL Financial. She also
submits deal memoranda listing her as a team member and her unpublished dissertation. Finally, the
petitioner notes that she was included in the 36 percent of those taking the Chartered Financial Analysts
(CFA) Levell exam who passed it.
The director concluded that while the petitioner had drafted financial analyses, she had not established
her past contributions or that she is "widely recognized by others in the field or that she has made a
significant impact on the field of financial analysis."
Page 6
On appeal, the petitioner asserts that in her field, "'specific contribution' is measured either in terms of
revenue generation which is directly linked to the value created for the clients and their shareholders or
in tenus of break-through financial innovation." She asserts that the three deal memoranda submitted
represent $10 million in revenues and that the Rensburg-Carr Sheppards Crosthwaite transaction "was
the first ever reverse merger in the private client asset management sector, and consequently became a
precedent transaction in the sector and a model of how to structure other similar transactions in the
sector." The petitioner further asserts that there are four "existing" methodologies of valuing
companies but that she developed a fifth methodology combining elements from absolute and relative
valuation based on statistical regression of the public asset management universe, which she
successfully applied in practice when valuing the then-private New Star Asset Management Ltd.
(NSAM) and, through a three-person team at Putnam Lovell, when subsequently advising NSAM for
its initial public offering (IPO) in November 2005. The petitioner submits at article on the NSAM lPO.
Finally, the petitioner asserts that her employment at a distinguished company in such a competitive
field and her successful results on the CFA Level 1 exam set her apart from others in the field.
We will not presume the petitioner's impact in the field from the reputation of her employer. It is the
petitioner's burden to demonstrate her own individual impact. Further, the petitioner's experience with
the UK and U.S. markets could be articulated on an application for alien employment certification. As
stated above, special or unusual knowledge or training does not inherently meet the national interest
threshold as the issue of whether similarly-trained workers are available in the U.S. is an issue under
the jurisdiction of DOL. NYSDOT, 22 l&N Dec. at 221. Moreover, while the fact that the petitioner
successfully completed her CFA Level 1 exam might relate to one of the regulatory criteria for aliens
of exceptional ability, set forth at 8 C.F.R. § 204.5(k)(3)(ii)(C), that classification normally requires
an alien employment certification approved by DOL. We cannot conclude that meeting one
criterion, or even the requisite three criteria warrants a waiver of that requirement in the national
interest. Id. at 222.
The petitioner relies primarily on her own statements, her self-serving resume and unpublished internal
memoranda and Master's dissertation. The record contains no letters from independent members of the
field, or even the petitioner's own colleagues, confirming her role on various projects and the
significance of those projects. While the petitioner has submitted the deal memoranda reflecting her
role as a team member, these memoranda do not establish the significance of the projects. The record
also lacks evidence of articles in the general or trade media commenting on the significance of the
beneficiary's analyses. For example, the record contains no evidence beyond the petitioner's own
assertion that reverse mergers in the private client asset management sector are now conducted based
on her own novel success with the Rensburg-Carr Sheppards Crosthwaite transaction. While the
petitioner submitted an article on NSAM's IPO, the article does not suggest that the IPO was successful
due to a novel valuation methodology. The record lacks evidence that this new valuation methodology
is gaining acceptance as a fifth methodology for evaluating the value of companies.
Page 7
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.
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 an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.