dismissed EB-2 NIW Case: Government Services

US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
4 
US. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 2 Q 2005 
IN RE: 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. 8 1 153(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. 
&/Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The 
matter is now before the Associate Commissioner for Examinations on appeal. The appeal will be dismissed. 
The petitioner filed Form 1-140, Immigrant Petition for Alien Worker, and checked box "h" on the form, thereby 
indicating that the petitioner seeks to classify the beneficiary as an alien of exceptional ability or a member of 
the professions holding an advanced degree, and that the petitioner seeks an exemption from the requirement 
of a job offer, and thus of a labor certification, in the national interest of the United States. Counsel's cover 
letter, filed with the petition, begins with the heading "1-140 Petition for Alien Worker under National Interest 
Waiver." 
Everything else the petitioner has submitted, however, has related to an entirely different immigrant 
classification. The same introductory letter from counsel, quoted above, indicates that the beneficiary "has 
worked for the USAF under Foreign Military Sales contract." A separate statement, with no signature or 
attribution, states: 
The Employment Based Fourth Preference (EB4) 
Employer required and Labor Certification not required 
This preference is for "special immigrants" which is explained in the following paragraph: 
Immigrants in this category include religious ministers, certain long-time employees of the 
U.S. government (or of certain international organization[s]) employed abroad, and some 
physicians who have resided in the U.S. for a number of years, court dependants [sic], etc. 
In a letter accompanying the petition, the beneficiary states that he is "Seeking National Interest Waiver under 
section 42.32(d) N6.5-3 'Exceptional Circumstances."' 
The so-called "EB4" classification, pertaining to special immigrants such as those listed above, is an entirely 
different classification than the exceptional abilityladvanced degree classification requested on Form 1-140. The 
classifications are governed by separate sections of law, sections 203(b)(4) and 203(b)(2), respectively. The 
national interest waiver applies only to the exceptional abilityladvanced degree classification. 
In response to a request for additional evidence, the beneficiary stated that he "applied for National Interest 
Waiver, under preference EB4." 
The director denied the petition, stating that the petitioner has not shown that the beneficiary meets the eligibility 
requirements set forth in regulations at 8 C.F.R. 5 204.5(k) and its incorporated subsections, which govern the 
classification that the petitioner requested by checking box "h" on Form 1-140. The director also indicated that 
the petitioner has submitted nothing to meet the guidelines set forth in Matter of New York State Dept. of 
Transportation, 22 I&N Dec. 2 15 (Comm. 1998), a precedent decision that relates to the national interest waiver 
of the job offer requirement. 
On appeal, counsel states that the director failed to take into account materials submitted in response to a request 
for evidence. Counsel does not address the basic statutory and regulatory requirements that the director listed in 
the denial notice. 
It is clear that the petitioner has confused different classifications, attempting to combine the national interest 
waiver with a classification to which the waiver does not apply. The preponderance of the materials in the record 
...- 
Page 3 
indicate that the petitioner seeks to classify the beneficiary not as an alien of exceptional ability or a member of 
the professions holding an advanced degree, pursuant to section 203(b)(2) of the Act, but as a special immigrant, 
pursuant to sections 203(b)(4) and 101(a)(27) of the Act. 
Section 10 l(a)(27)(D) of the Act states, in full, that the definition of "special immigrant" includes: 
an immigrant who is an employee, or an honorably retired former employee, of the United 
States Government abroad, or of the American Institute in Taiwan, and who has performed 
faithful service for a total of fifteen years, or more, and his accompanying spouse and 
children: Provided, That the principal officer of a Foreign Service establishment (or, in the 
case of the American Institute in Taiwan, the Director thereof), in his discretion, shall have 
recommended the granting of special immigrant status to such alien in exceptional 
circumstances and the Secretary of State approves such recommendation and finds that it is in 
the national interest to grant such status. 
Form 1-140 cannot be used to petition for any special immigrant classification. Some types of special immigrant 
classification can be requested on Form 1-360, Petition for Amerasian, Widow(er) or Special Immigrant. In this 
instance, however, the petitioner seeks to classify the beneficiary under a classification for which jurisdiction lies 
not with Citizenship and Immigration Services (CIS), but with the Department of State (DOS). 
We note the beneficiary's reference to "section 42.32(d) N6.5-3." This is not a CIS regulation, but a partial 
citation from the DOS' Foreign Affairs Manual (FAM). 9 FAM 42.32(d)(2)(1)(A) states, in pertinent part: 
An alien is classifiable under WA 203(b)(4) as a special immigrant described in INA 
10 1 (a)(27)(D) if a petition to accord such status has been approved by the Secretary of State. An 
alien may file such a petition only after, but within one year of, notification from the Department 
that the Secretary of State has approved a recommendation from the Principal Officer that 
special immigrant status be accorded the alien in exceptional circumstances and has found it in 
the national interest so to do. 
The above citation indicates that, for the type of special immigrant status sought in this matter, the petition must 
be filed with DOS, rather than with CIS. The passage at 9 FAM 42.32(d) N6.5-3, cited by the beneficiary in his 
letter, discusses the nature of the "exceptional circumstances" to be taken into account. 
Inasmuch as the petitioner has never advanced a coherent claim that the petitioner qualifies as an alien of 
exceptional ability or as a member of the professions holding an advanced degree, the petition cannot be 
approved. Similarly, the petitioner has offered no clear argument in favor of the national interest waiver. The 
petitioner has not shown that the director erred in denying the petition, and therefore the appeal must be 
dismissed. It is abundantly clear that the petitioner seeks a benefit that only DOS, rather than CIS, is in a position 
to grant. 
Because the petitioner seeks a classification outside of CIS' jurisdiction, the AAO, in this proceeding, takes no 
position as to whether or not the petitioner qualifies for classification as a special immigrant as described at 
section 10 l (a)(27)(D) of the Act. 
ORDER: The appeal is dismissed.