dismissed EB-2 NIW Case: Finance

Identifyingdatadeletedto
preventclearlyunwarranted
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PUBtJCCOPY
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE:
EAC 04 196 50486
Office: VERMONT SERVICE CENTER Date: AUG 0 3 2lJ(J1..;
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:
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.
,/{;~l{lv/.tfJ Pitt!}" tiL-
{"'Robert P. Wiemann, Chief
'1vAdministrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability or a member of the professions
holding an advanced degree. I The petitioner seeks employment as a financial specialist. 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 does
not qualify as an alien of exceptional ability and 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 his advanced degree alone makes him exceptional. In a
subsequent brief, counsel asserts that the petitioner qualifies as a member of the professions holding an
advanced degree. Counsel then cites a non-precedent decision by this office sustaining the appeal of
another financial analyst for the proposition that financial analysts are eligible for the national interest
waiver. Finally, the petitioner submits a single witness letter, the first submitted in this matter. For the
reasons discussed below, we uphold the director's ultimate decision denying the petition. Neither the
petitioner nor counsel has ever addressed the standards set forth in the relevant precedent decision
despite being repeatedly advised of these standards by the director. Rather, both the petitioner and
counsel rely on assertions that are legally incorrect and emphasize facts that are immaterial.
Section 203(b) of the Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of
Exceptional Ability. --
(A) In General. -- Visas shall be made available ... to qualified immigrants who are
members of the professions holding advanced degrees or their equivalent or who
because of their exceptional ability in the sciences, arts, or business, will substantially
benefit prospectively the national economy, cultural or educational interests, or welfare
of the United States, and whose services in the sciences, arts, professions, or business
are sought by an employer in the United States.
(B) Waiver of Job Offer.
I Counsel initially asserted that the petitioner was a member of the professions holding an advanced degree.
In response to the director's request for additional evidence, counsel reiterated that the petitioner holds an
advanced degree but explicitly requested "that he be classified as an individual with exceptional ability in the
field of Business."
(i) ... the Attorney General may, when the Attorney General deems it to
be in the national interest, waive the requirement of subparagraph (A)
that an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
As stated in the first footnote of this decision, counsel initially asserted that the petitioner is a member
of the professions holding an advanced degree. In response to the director's first request for additional
evidence, counsel expressly requested that the petitioner be classified as an alien of exceptional ability
but did not prorerly address the regulatory criteria for that classification set forth at 8 C.F.R.
§ 204.5(k)(3)(ii). Thus, the director issued a second request for additional evidence requesting
evidence relating to those criteria. In response, counsel asserted that the petitioner had already
responded to a request and had established his eligibility. The director concluded that the petitioner had
not established that he is an alien of exceptional ability. On appeal, counsel reiterates the initial claim
that the petitioner is a member of the professions holding an advanced degree. Some of the statements
by counsel and the petitioner imply that a member of the professions holding an advanced degree
should qualify for a waiver of the alien employment certification upon a showing of exceptional ability
alone. As will be discussed in more detail below, the waiver of the alien employment certification is a
separate issue. Before we reach the separate waiver issue, however, we must consider whether the
petitioner qualifies for the classification sought as either a member of the professions holding an
advanced degree or an alien of exceptional ability.
The petitioner holds a Master's of Business Administration (MBA) from Troy State University. As
noted by counsel on appeal, the Department of Labor's Occupation Outlook Handbook, available at
www.bls.gov/oco.statesthatabaccalaureateistheminimumrequirementforfinancialanalysts.As
such, the petitioner's occupation falls within the pertinent regulatory definition of a profession. See
8 C.F.R. § 204.5(k)(2). The petitioner thus qualifies as a member of the professions holding an
advanced degree.
As the petitioner qualifies for the classification sought, the issue of whether he might also qualify for
classification as an alien of exceptional ability is moot. More specifically, Citizenship and Immigration
Services (CIS) may waive the alien employment certification for both aliens of exceptional ability and
advanced degree professionals in the national interest. Nevertheless, it is worth noting that both the
law and the relevant regulations directly and unequivocally contradict the petitioner's appellate
assertion that his MBA alone demonstrates his exceptional ability. Section 203(b)(2)(C) of the Act
expressly states that the possession of a degree, diploma, certificate or similar award from a college,
university school or other institution of learning shall not by itself be considered sufficient evidence
of exceptional ability. Thus, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth six criteria to be
2 Counsel listed three purported requirements for aliens of exceptional ability, only two of which derive from
the six requirements set forth in the regulation at 8 C.F.R. § 204.5(k)(3)(ii). While counsel listed the
requirement relating to salary or remuneration, the petitioner did not submit any evidence of his salary or
other remuneration.
used in evaluating whether the alien has a degree of expertise significantly above that ordinarily
encountered in the field. Consistent with section 203(b)(2)(C) of the Act, possession of a degree is
only one of the regulatory criteria, of which an alien must meet at least three.
As the petitioner qualifies as a member of the professions holding an advanced degree, the next and
separate determination 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 "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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states:
The Service believes it appropriate to leave the application of this test as flexible as
possible, although clearly an alien seeking to meet the [national interest] standard must
make a showing significantly above that necessary to prove the "prospective national
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest
with the alien to establish that exemption from, or waiver 0:[, 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 (Comm. 1998), has set forth several
factors which must be considered when evaluating a request for a national interest waiver. First, it must
be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be
shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver
must establish that the alien will serve the national interest to a substantially greater degree than would
an available U.S. worker having the same minimum qualifications. We note that the director advised
the petitioner and counsel of this standard on three occasions: in two requests for additional evidence
and in the director's final decision. Despite this notice, neither the petitioner nor counsel has ever
addressed the considerations set forth in that decision.
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.
Page 5
The director concluded that the petitioner had not addressed any of the standards set forth in Matter of
New York State Dep't ofTransp., 22 I&N Dec. at 215. On appeal, counsel and the petitioner reiterate
claims regarding the petitioner's eligibility for classification under section 203(b)(2) of the Act without
acknowledging the higher showing required for aliens seeking a waiver of the job offer requirement
inherent to that classification. The implication throughout this proceeding is that an alien's exceptional
ability alone can warrant a waiver of the alien employment certification in the national interest. Section
203(b)(2)(A) of the Act states that visas shall be made available to advanced degree professionals and
aliens of exceptional ability whose services are sought by an employer in the United States. Section
203(b)(2)(B) of the Act provides for a discretionary waiver of the job offer in the national interest. We
must presume that, by stating an explicit requirement for aliensof exceptional ability and then allowing
for a discretionary waiver, Congress did not mandate that that requirement be waived for all aliens of
exceptional ability. This reasoning is clearly explained and emphasized in Matter ofNew York State
Dep 't ofTransp., 22 I&N Dec. at 218. The AAO stated:
Because, by statute, "exceptional ability" is not by itself sufficient cause for a national
interest waiver, the benefit which the alien presents to his or her field of endeavor must
greatly exceed the "achievements and significant contributions" contemplated in the
regulation at 8 C.F.R. 204.5(k)(3)(ii)(F).
Id. (Emphasis added.) Later in the decision, the AAO once again stated that exceptional ability, by
itself: does not justify a waiver of the job offer/alien employment certification requirement. Id. at 222.
Thus, the main basis of eligibility asserted by both counsel and the petitioner is legally flawed.
Nevertheless, we will consider the evidence submitted under the proper standard.
The petitioner's proposed employment is as a financial specialist. The petitioner did not list the non­
technical description of the job on the petition as required in Part 6. Counsel's initial cover letter
does not explain what the petitioner intends to do, the position's substantial intrinsic merit or how
the benefits of this employment would be national in scope. In response to the director's request for
additional evidence, counsel explains that the petitioner is working as a sales associate/account
administrator in the Capital Management Group at Wachovia Securities. The petitioner was also
seeking a second Master's degree. The petitioner's duties for Wachovia included assisting senior
investment advisors, monitoring and providing quotes on the stock markets and clients' accounts,
executing fund transfers, facilitating communication with clients and serving as a point of contact
with the accountants of clients. Counsel asserts that the petitioner's employment will "substantially
benefi national economy of the U.S." On appeal, the petitioner submits a letter
from a professor of management and strategic planning at Hofstra University,
who asserts that the petitioner was subsequently promoted and now provides more direct services to
clients.
Weare persuaded that the petitioner's proposed employment does have substantial intrinsic merit. In
evaluating whether any proposed benefits would be national in scope, however, we must consider the
following guidance:
For instance, pro bono legal services as a whole serve the national interest, but the
impact of an individual attorney working pro bono would be so attenuated at the
national level as to be negligible. Similarly, while education is in the national interest,
the impact of a single schoolteacher in one elementary school would not be 'in the
national interest for purposes of waiving the job offer requirement of section
203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic
value, the work of one cook in one restaurant could not be considered sufficiently in the
national interest for purposes of this provision of the Act.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 217, n.3. Under this analysis, it would
appear that assisting senior investment advisors or even directly advising clients would provide
benefits that would be so attenuated at the national level as to be negligible. Neither the petitioner
nor counsel has expressly asserted otherwise or explained how the petitioner will impact the field of
financial analysis nationally.
It remains, then, to determine whether the petitioner will benefit the national interest to a greater
extent than an available U.S. worker with the same minimum qualifications. Eligibility for the
waiver must rest with the alien's own qualifications rather than with the position sought. In other
words, we generally do not accept the argument that a given project is so important that any alien
qualified to work on this project must also qualify for a national interest waiver. Matter ofNew York
State Dep 't of Transp., 22 I&N Dec. at 218. 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. Id. at
221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. Id. at 219, n. 6. 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.
Prior to appeal, the petitioner submitted his academic credentials, recognition from his employer, his
unpublished baccalaureate thesis in an unrelated field and the academic requirements for the
proposed employment. None of this evidence related to the petitioner's influence in the field. For
example, the petitioner did not submit evidence that he has authored published articles on finance,
presented his financial or business theories at major conferences or comparable evidence. The
record did not include letters from his employers confirming his role with them or letters from
independent financial analysts who have been influenced by the petitioner.
Page?
On appeal, counsel relies on a non-precedent decision by this office. While 8 C.F.R. § 103 .3(c)
provides that AAO precedent decisions are binding on all CIS employees in the administration of the
Act, unpublished decisions are not similarly binding. Regardless, we note that the alien in the matter
on which counsel relies had published articles presenting original research with "phenomenal"
implications. While the decision submitted on appeal may demonstrate that this office has looked
favorably on financial analysts in the past, it is the position of Citizenship and Immigration Services
(CIS) to grant national interest waivers on a case-by-case basis, rather than to establish blanket waivers
for entire fields of specialization. Matter ofNew York State Dep 't ofTransp., 22 I&N Dec. at 217.
Also on appeal, the petitioner submits the above-mentioned letter from Mr. Charnov. CIS 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. 1988). However, CIS is ultimately responsible for
making the final determination regarding an alien's eligibility for the benefit sought. Id. The
submission of letters from experts supporting the petition is not presumptive evidence of eligibility;
CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id.
at 795-796. CIS may even give less weight to an opinion that is not corroborated, in accord with
other information or is in any way questionable. Id. at 795; See also Matter ofSofJici, 22 I&N Dec.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972)).
In evaluating reference letters, we note that letters containing mere assertions of skill and
qualifications for a specific job are less persuasive than letters that provide specific examples of how
the petitioner has influenced the field. In addition, letters from independent references who were
previously aware of the petitioner through his reputation and who have applied his work are far more
persuasive than letters from independent references who were not previously aware of the petitioner
and are merely responding to a solicitation to review the petitioner's curriculum vitae and work and
provide an opinion based solely on this review.
While independent of the petitioner, does not appear to have ever heard of the
petitioner or his work prior to being contacted for a reference letter. asserts that his
opinion is based on an analysis of the petitioner's resume and academic transcripts. In reaching his
conclusion, ~valuates the petitioner's education, including his class standing, and work
experience. _notes that the petitioner is pursuing a second Master's degree and notes
~itional education allows an individual to be a better and smarter worker. Finally, _
_ concludes that the petitioner is well qualified to work in the field and would be an asset to
any employer seeking a professional with business experience.
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. Matter ofNew York State Dep 'to ofTransp., 22 I&N Dec. at 219, n.6.
In addition, simple training or unusual knowledge, while perhaps attractive to the prospective U.S.
employer, does not inherently meet the national interest threshold. Id. at 221. Furthermore, with regard
to experience, the regulations indicate that ten years of progressive experience is one possible criterion
that may be used to establish exceptional ability. Because exceptional ability, by itself, does not justify
a waiver of the job offer/labor certification requirement, length of experience, while relevant, is not
dispositive. Id. at 222.
Finally, the petitioner asserts that the challenges he faces in the job market are "exacerbated" by his
lack of permanent residency and that his pending degree will allow him to provide a broad range of
services. Nothing in the legislative history suggests that the national interest waiver was intended
simply as a means for self-petitioning aliens to avoid the inconvenience of the labor certification
process. Id. at 223. Moreover, the petitioner must be eligible as of the date of filing. See 8 C.F.R.
§ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). We cannot consider
"facts that come into being only subsequent to the filing of a petition." Matter ofIzummi, 22 I&N
Dec. at 176 (citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981). Regardless, assuming that a
second Master's degree would be indicative of a degree of expertise significantly above that
ordinarily encountered, it would serve to meet one of the regulatory criteria for aliens of exceptional
ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). As stated above, that classification normally requires an alien
employment certification. We cannot conclude that meeting one of the regulatory criteria for that
classification, of which an alien must meet at least three, warrants a waiver of that requirement.
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.