dismissed EB-2 NIW Case: Finance

(b)(6)
U.S. De.partment of Homeland Security 
U.S. Citizen ship and Immigr ation Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OC1 0 8 2013 Office: NEBRASKA SERVICE CENTER FILE: 
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 . § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R .§ 103.5. Do not file a motion directly with the AAO . 
Thank you, 
))!JuviVJ~ 
~on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. According to 
Patt 6 of the Form I-140, the petitioner seeks employment as a "Financial analyst." 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 petitioner 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 submits a statement in support of her eligibility and additional documentation. 
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 employei· 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. 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. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ETA-750B , Statement of Qualifications of 
Alien, in duplicate." The petitioner did not execute this required document for the petition, and 
therefore the petitioner has not properly applied for the national interest waiver. For this reason 
alone, the petitioner has failed to establish eligibility for the benefit sought. 
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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, 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. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in 
scope. Finally, the petitioner must establish that the alien will serve the national interest to a 
substantially greater degree than would an available United States worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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 USCIS regulation at 8 C.P.R. § 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. 
The petitioner has established that her work in the financial field is in an area of substantial intrinsic 
merit. It remains, then, to determine whether the proposed benefits of the petitioner's work would 
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be national in scope and whether she 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. Assertions regarding the overall importance of an alien's area of expertise cannot suffice to 
establish eligibility for a national interest waiver. NYSDOT at 220. Moreover, it cannot suffice to 
state that the alien possesses useful skills, or a "unique background." 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. !d. at 221. 
The petitioner filed the Form I-140 petition on April 9, 2007. In a statement accompanying the 
petition entitled "The reasons why I file 1-140" the petitioner expressed her desire to work for a 
financial company in New York to help the city maintain its status as "the world's financial capital. " 
Thepetitioner did not specifically mention the NYSDOT guidelines or explain how she meets them. 
In sugport of the petition, the petitioner submitted articles entitled 
and - -
discuss a burdensome regulatory environment in the United States that is 
encouraging financial services companies to pursue business opportunities overseas in cities such as 
London. General arguments or information regarding the importance of a given field of endeavor, or 
the urgency of an issue facing the United States , cannot by themselves establish that an individual 
alien benefits the national interest by virtue of engaging in the field. NYSDOT at 217. Such 
assertions and information address only the "substantial intrinsic merit" prong of NYSDOTs national 
interest test. None of the preceding articles demonstrate that the petitioner's specific work has or 
will benefit the national interest to a greater extent than other financial analysts with the same 
minimum qualifications. 
The petitioner also submitted her Master of Business Administration (MBA) degree from the 
As previously indicated, the director has determined that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree. This issue in 
this matter is whether the petitioner ' s past record of achievement is at a level that would justify a 
waiver of the job offer requirement. 
In addition, the petitioner submitted a listing of company stock quotes from Yahoo Finance, and 
stock research for the "Pharmaceuticals & Biotechnology," banking, "Oil & Gas" production , 
chemical, real estate, and "Forestry & Paper" industries showing company rankings by market cap 
and earnings growth . None of this documentation indicates the petitioner's work in the financial 
industry has influenced the field on a national level. At issue is whether this petitioner's 
contributions in the field are of such unusual significance that she merits the special benefit of a 
national interest waiver, a benefit separate and distinct from the visa classification she seeks. A 
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petitioner must demonstrate a past history of achievement with some degree of influence on the field 
as a whole. !d. at 219, n. 6. 
The director issued a request for evidence on August 13, 2008, instructing the petitioner to submit 
evidence to establish that she meets the eligibility factors set forth in NYSDOT. 
In response, the petitioner submitted a statement asserting that her work in national in scope based 
on her Bachelor of Science degree in Economics from the her 
MBA in Finance, her "almost ten years" of experience working for a public company in China, and 
her experience in personal financial matters such as stock investments and insurance. The petitioner 
submitted her "Graduation Certificate" from the an "Insurance 
receipt" dated 11/28/1997 , a 
' dated 01/17/2006, and a 
stock exchange Stock account" opened on 09/2511996. The English language translations 
accompanying the preceding documents were not certified by the translator as required by the 
regulation at 8 C.P.R. § 103.2(b)(3). Any document containing foreign language submitted to 
USCIS shall be accompanied by a full English language 
translation that the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to translate 
from the foreign language into English. !d. Regardless, academic degrees and experience are 
elements that can contribute toward a finding of exceptional ability. See 8 C.P.R. 
§ 204.5(k)(3)(ii)(A) and (B), respectively . Exceptional ability, in tum, is not self-evident grounds 
for the waiver. See section 203(b )(2)(A) of the Act. None of the preceding documents demonstrate 
that the petitioner's work as a financial analyst will produce benefits that are national in scope. 
In regard to influencing the field to a greater extent than an available U.S. worker with the same 
minimum qualification s, the petitioner asserted that she "developed investment theory," provided 
financial advice to and scored "85 out of 100" on a job candidate examination 
administered by the State of New York Banking Department. The petitioner, however, has failed to 
submit documentary evidence showing that she developed an "investment theory" that has 
influenced the financial industry. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings . Matter of Soffici , 22 
I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
The petitioner submitted a September 19, 2008 letter from Chairman, President, 
and Chief Executive Officer, stating: "I have known [the petitioner] for about 5 
years. During that time, she has shown and proven to me that she is well educated in finance, learns 
quickly and comes to conclusions that are very accurate. I would strongly recommend her to anyone 
requiring her services." Mr. comments on the petitioner's education and the accuracy of 
her conclusion s, but he fails to provide specific examples of how the petitioner's work has 
influenced the field as a whole. 
The petitioner submitted a September 4, 2008 letter from the State of New York Banking 
Department indicating that she "received a score of 85 on Examination No. 20-598 Bank Examiner 
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Trainee 1," but the test results post-date the filing of the petition. Eligibility must be established at 
the time of filing. 8 C .F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts . Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision 
fmther provides, citing Matter of Bardouille , 18 I&N Dec. 114 (BIA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Regardless, the petitioner failed to explain how achieving a passing test score for a "Trainee" Bank 
Examiner position demonstrates that she has influenced the field as a whole. Academic 
performance, measured by such criteria as grade point average, cannot alone satisfy the national 
interest threshold or assure substantial prospective national benefit. In all cases the petitioner must 
demonstrate specific prior achievements that establish the alien's ability to benefit the national 
interest. NYSDOT at 219, n.6. 
The director denied the petition on January 7, 2009. The director found that the petitioner failed to 
establish that an exemption from the requirement of a job offer would be in the national interest of the 
United States. The director stated that the petitioner had failed to demonstrate that the benefits of her 
proposed employment would be national in scope. In addition, the director indicated that the petitioner 
had failed to submit documentary evidence of "specific prior achievements that would establish her 
ability to benefit the national interest." 
On appeal, the petitioner states that she intends "to work with a financial institution or government 
by providing financial advisory services in connection with mergers, acquisitions, divestitures, 
recapitalizations, leveraged buyouts, and public and private financings ." The petitioner comments 
that her "prospects for employment as a financial analyst in the United States are quite broad." The 
petitioner's comment suggests a demand for her services, a demand that the alien employment 
certification process can address. The petitioner also claims that a "typical American financial 
analyst" is "weak" in mathematics-related subjects and that the industry lacks "highly qualified 
financial analysts to do the work." The record, however, does not include documentary evidence to 
support the petitioner's assertions. As previously discussed, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings . Matter of Sojfici, 22 I&N Dec. at 165. Regardless, a shortage of qualified workers in a 
given field is an issue that falls under the juri sdiction of the Department of Labor through the alien 
employment certification process. NYSDOT at 221. 
On page 4 of her statement accompanying the appeal, the petitioner questions the director's reliance 
on the eligibility factors set forth in NYSDOT as guidance for adjudicating the Form I-140 petition. 
With regard to the director following the guidelines set forth in NYSDOT, by law, the USCIS does 
not have the discretion to ignore binding precedent. See 8 C.P.R. § 103.3(c). 
The petitioner states: 
The Service concluded that "Under this analysis, it would appear that advising clients would 
provide benefits that would be so attenuated at the national level as to be negligible." 
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Pursuant to this guidance's logic, I am inferring that no individual is able to provide benefits 
that would be national in scope. 
The logic's problem lies in the fact that it does not draw a line between a good attomey and 
an ordinary one, a good elementary school teacher and a bad one, a good cook and a 
mediocre one .... Consequently, the benefits that a good attorney, a good teacher or some 
other professionals who qualify as a member of the professions holding an advance[ d] degree 
can bring about are measurable and national in scope. 
NYSDOT cited to a school teacher, a pro bono attomey, and a cook as examples of occupations in 
fields with overall national importance (education, free legal services, and nutrition), but in which 
individual workers generally do not produce benefits that are national in scope. NYSDOT at 217, 
n.3. The statutory standard is that the waiver will serve the national interest, and the petitioner's 
observations about a "good" worker versus an "ordinary" worker in a given field do not address that 
standard. Once again, under the regulation at 8 C.F.R. § 103.3(c), NYSDOT is binding precedent on 
all USCIS employees, and the petitioner's assertions pertaining to an alternative standard 
unsupported by statute or regulation cannot succeed. 
The etitioner submits a membership card for the Stock Exchange, a membership card for 
the , Stock Exchange, a 1997 insurance payment receipt, and a 2006 insurance payment 
receipt. The petitioner also submits a certified English language translation of the preceding 
documents and of her "Graduation Certificate" from the None of 
the preceding documents demonstrates that the proposed benefits of the petitioner's work as a 
financial analyst will be national in scope. In the present matter, the benefits of the petitioner's 
impact as a fiancial analyst would be limited to her employer and its clients and, therefore, so 
attenuated at the national level as to be negligible. 
Regarding her ability to "benefit the national interest to a greater extent than an available U.S. 
worker with the same minimum qualifications," the petitioner states: "I do have not only precious 
gifts and skills, but also a 'unique background."' As previously discussed, it cannot suffice to state 
that the alien possesses useful skills, or a "unique background." Regardless of the alien's particular 
experience or skills, even assuming they are unique, the benefit the alien's skills or background will 
provide to the United States must also considerably outweigh the inherent national interest in protecting 
U.S. workers through the labor certification process. NYSDOT at 221. 
The petitioner asserts that the "financial opinion" that she provided to 
"distinguishes her from most ... American financial analysts" and demonstrates her "past history of 
achievement with some degree of influence on the finance field as a whole." 
The petitioner submits a February 4, 2009 letter from stating: 
[The petitioner] is very knowledgeable about economic matters as they relate to business and 
the economy. As Chairman/CEO of (Nasdaq:ACET) , she has given me 
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some very excellent advice about economic matters and I trust her judgment very highly. As 
a matter of fact, she has been sought after as a finance expert. 
Mr. praises the petitioner for her knowledge, economic advice, judgment, and financial 
expertise, but Mr. s observations do not set the petitioner apart from other competent and 
qualified financial analysts, or explain how the petitioner's work has impacted the field beyond his 
company. 
The petitioner's appellate submission includes a May 1, 2013 letter from Mr. commenting 
again on his reliance on the petitioner's financial advice and stating that the petitioner "is an 
outstanding finance professional who has been contributing to New York City." Mr. 
however, does not explain how the petitioner's impact or influence is national in scope. 
The petitioner submits an April 8, 2013 letter from 
\ stating: 
President of 
main service is to assist homeowners facing foreclosures 
in reducing their monthly payment oh their mortgage. In her position as a Processor, [the 
petitioner] has been contracted by our office from July 2010 to present. [The petitioner] has 
done an excellent job in this position and has been a great asset to our company during her 
tenure with the company . She has excellent math skill, great financial analysis skill, and has a 
remarkable rapport with our clients. To this date, with the help of [the petitioner] 
has been responsible for successfully keeping over 10,000 
families in their homes. 
[The petitioner] has always been willing to offer more then [sic] what was expected from her. 
[The petitioner] enhanced our services already in place and developed templates to speed up 
our processing time. She worked directly with new employees to acclimate them to her 
systems which in return increase the companies over all production. Most of all she was able 
to process all tasks through completion to ensure that the job was done above and beyond our 
company's and clients expectations. 
The petitioner's work for post-dates the filing of the petition. As previously discussed, 
eligibility must be established at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. Accordingly, Mr. ·s letter discussing the petitioner's work 
for his company from 2010 through 2013 cannot be considered in this proceeding. Regardless, 
while Mr. comments on the petitioner's responsibilities at and her business 
skills, he fails to provide specific examples of how the petitioner's work has influenced the field as a 
whole. 
The petitioner also submits an April 23, 2013 letter from 
in the State of New York and owner of 
I have been [the petitioner's] accountant for last few years. 
a certified public accountant 
stating: 
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After the severe recession happened, [the petitioner] has referred clients to me when she 
found those clients' previous accountants made mistake in their tax returns. For instance, the 
previous accountant of Mr. from Long Island did not declare him as a small business 
owner as he should be. Instead, the accountant had declared him as a wage earner from 
another business. Although Mr. was facing foreclosure with a veteran son who did 
not get a job at that time, his mortgage bank could not modify his loan. After I fixed his tax 
filing problem, [the petitioner] explained the situation to Mr. s mortgage bank with 
relevant financials. As a result, Mr. _j s loan was modified. The family 
continues to stay in their house. 
New York needs professionals to work for its financial health and financial improvement. 
[The petitioner] is just such a finance professional who has an advanced degree and applies 
her knowledge to today's complicated world. 
Mr. indicates that the petitioner provided helpful financial guidance to a client, and Mr. s 
comments demonstrate that the petitioner works in an area of substantial intrinsic merit. However , 
Mr. s comments do not indicate that the petitioner's work has influenced the field as whole, or 
that the petitioner has or will benefit the United States to a greater extent than other qualified 
financial analysts. Furthermore, the petitioner provided the aforementioned guidance to the client 
subsequent to filing the I-140 petition. Again , eligibility must be established at the time of filing. 
8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
In addition, the petitioner submits a May 9, 2013 letter from stating: 
Although I own a 3-unit house in New York, I used to be an auditor in Texas State 
Comptroller's office. In the summer of 2008, I started up with my friend our restaurant 
business. However, because the economy was slowing down at that time, our restaurant was 
not frequented a lot by customers. Gradually, we used up all our cash reserves and I fell 
behind on my mortgage payments. I tried to borrow money from my relatives to cope with 
the situation, but Hurricane Sandy and Nor'easter hit us hard and made us lose more 
financially. 
With the help of [the petitioner] and the company she works with, my loan got modified . I'm 
keeping the house and moving forward . 
Mr. comments on the loan modification that the petitioner helped him secure, but Mr. 
fails to provide specific examples of how the petitioner's work has influenced the field as a whole. 
Moreover, the loan modification performed by the petitioner post-dates the filing of the petition. 
Once again, eligibility must be established at the time of filing. 8 C.P.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. 
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The petitioner's references fail to demonstrate that her work has had an impact or influence outside 
of the companies or clients for which she has worked. The Board of Immigration Appeals (BIA) has 
held that testimony should not be disregarded simply because it is "self-serving." See, e.g., Matter 
of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). The BIA also held, however: "We not 
only encourage, but require the introduction of coiToborative testimonial and documentary evidence , 
where available. " /d. If testimonial evidence lacks specificity , detail, or credibility , there is a 
greater need for the petitioner to submit coiToborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 
(BIA 1998). 
The opinions of the petitioner's references are not without weight and have been considered above . 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien 's eligibility for the 
benefit sought. /d. The submission of letters of support from the petitioner' s personal c.ontacts is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). 
The petitioner's appellate submission also includes an October 21, 2011 letter from a Human Resources 
Management representative at the stating 
that the petitioner "received a score of 100 on Examination No. 20-598 Bank Examiner Trainee 1" for 
candidates applying for that position with the The letter from the fmther states : 
"Due to New York' s cuiTent fiscal constraints, a statewide hiring freeze has been established that is 
applicable for most State positions at this time." While passing a standardized test for an entry level 
position may demon strate that the petitioner is qualified to become a "Bank Examiner Trainee" in 
New York, it does not establish a past history of achievement with some degree of influence on the 
field as a whole. Regardless, the submitted test results again post-date the filing of the petition . As 
previously discussed, eligibility must be established at the time of filing . 8 C.F.R. §§ 103.2(b)(1), 
(12); Matter of Katigbak, 14 I&N Dec. at 49. 
In this matter, the petitioner has not established that her past record of achievement is at a level that 
would justify a waiver of the job offer requirement which, by law, normally attaches to the visa 
classification sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of 
national acclaim, but the national interest waiver contemplates that her influence be national in 
scope. /d. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole."). 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. 
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In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.