dismissed EB-2 NIW Case: Graphic Design

(b)(6)
·- -~ _, 
DATE: 
FEB 2 2 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative 
Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Was.~ington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have consid~ed, you may file a motion to reconsider or a motion to reopen in 
accordance with the instruc.tions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider_ or reopen. 
Thank you, 
Ron R~senberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal, as well as a 
·subsequent motion to reconsider. ··The matter is now before the AAO on a motion to reopen and 
reconsider. The AAO will grant the motion to reopen, dismiss the motion ~o reconsider and affirm the 
dismissal of the appeal. 
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 with post-baccalaureate experience 
equivalent to an advanced degree. The petitioner seeks employment as a graphic designer at the 
,, doing business as the 
1. 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 the defined equivalent of 
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 ofthe United States. The AAO affirmed the director's 
decision and dismissed the petitioner's appeal, before dismissing the petitioner's motion to reconsider. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Wh~ 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 iti 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. 
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). 
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Supplementary information to regulations implementing the Immigration Act ofl990, 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 (NYSD01), 22 I&N Dec. 215 (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 inerit. 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 
contnbutions 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 AAO also notes that the USCIS regulation at 8 C.F.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. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
Service policy. A motion to reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
The petitioner filed the Form I-140 petition on July 6, 2010. The director denied the petition on March 
30, 2011. The petitioner appealed the decision on April 29, 2011, and the AAO dismissed the appeal on 
April 2, 2012. The petitioner filed its first motion to reconsider on May 4, 2012, and the AAO 
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dismissed that motion on November 27, 2012. The AAO incorporates its prior disririssal notices by 
reference, and will quote brief sections of those decisions as necessary for context. 
The petitioner's initial submission had focused on the esthetic aspects of her work as a graphic designer 
for the Brooklyn Museum. The petitioner's own descrjption of that work follows: 
Prepares layouts, illustrations, graphic designs and logos for art museum brochures, 
pamphlets, fliers and related publicity materials, using traditional and computerized 
design methods. Consults with management concerning employer's objectives for 
above materials. Creates original graphic designs and images in order to realize 
employer's goals and attract public interest and goodwill, applying knowledge of form, 
color, perspective and specialized graphic design techniques. 
As one example of her past work, the petitioner submitted excerpts from 
_ a booklet published in 2004 while the petitioner worked for the 
Subsequently, the petitioner claimed that her work on the 
booklet served the national interest by fostering mutual understanding between the United States and 
the Islamic world. The AAO, in its April2012 dismissal notice, stated: 
The petitioner and her witnesses have consistently claimed that the petitioner's work has 
contributed to improving the image of the United States in the eyes of Muslims in the 
Middle East, but the record contains no evidence from the Middle East to provide any 
first-hand support for that claim. 
With respect to a list of the petitioner's recent projects at the the AAO also stated: 
These exhibits involved artifacts from the Roman Empire, pharaonic Egypt, and Assyria 
- all civilizations which collapsed hundreds of years before the emergence of Islam in 
the seventh century CE. It is not clear how often, if at all, future exhibitions will address 
the question of mutual understanding between the Muslim and non-Muslim 
communities. The record does not indicate that the petitioner has any authority over the 
selection of subjects for future exhibitions. The assertion that the petitioner's work 
fosters understanding oflsl~m, therefore, rests on a single project. 
In its November 2012 dismissal ofthe petitioner's first motion, the AAO stated: 
[T]he petitioner created the artwork for the booklet while working for the 
She left that employer in 2004, and the record does not indicate that 
she has undertaken any subsequent projects with the goal of fostering understanding 
with the Islamic world. The AAO previously noted that the petitioner's work at the 
_ concerned historical periods long before the founding of Islam The 
petitioner left the early in 201 0, and later that year began working for 
the . . The petitioner has not shown how 
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the 2004 booklet will continue, prospectively, to serVe the national interest. This one 
project does not establish a pattern of influence that would justify the expectation that 
such ,influence will continue. · 
On motion, the petitioner submits evidence showing that it was the petitioner's spouse, not the 
petitioner; who accepted employment at the Counsel states that the AAO 
"made an egregious error of fact by confusing the petitioner . . . with her husband. . . . This error 
severely prejudiced the petitioner, because it led the AAO to make a clearly erroneous factual 
conclusion on an issue of fundamental importance." . · 
The record shows that the reference to the charter school was, in fact, erroneous. The petitioner had 
submitted copies ofher spouse's pay receipts from the schoo~ which the AAO evidently mistook for 
evidence of the petitioner's own employment. The same evidentiary submission, however, included the 
petitioner's own July 1; 2010 declaration that she had been ''unemployed" since January 2010, entirely 
consistent with the 
AAO's statement that "[t]he petitioner left the early in 2010." 
The AAO mentioned the _ only once in its November 2012 decision, in the 
third paragraph from the end ofthat eight-page decision. The discussion preceding that point made it 
clear that the charter school reference was not the deciding factor; the AAO would have arrived at the 
same outcome even without mentioning the charter school. 
The petitioner submits evidence to support counsel's assertion that the petitioner ''returned to work for 
the ... in December 2011 and is still employed by that museum." Counsel asserts 
that the AAb failed to take into account the ''temporary'' nature ofthe petitioner's departure from the 
Brooklyn Museum, but the latest motion is the first time the petitioner mentioned the resumption of that 
employment. The petitioner had not included that information in the May 2012 motion. . As noted 
previously, the regulation at 8 C.F.R. § 1 03.5(a)(3) requires that a motion to reconsider must, when 
filed, establish that .the initial decision was incorrect based on the evidence of record at the time of 
the initial decision. The petitioner has not shown that the AAO drew the wrong conclusion from the 
evidence of record (as opposed to evidence that existed, but which the petitioner had not submitted). 
Counsel states: 
The AAO erroneously failed to give due weight to one of the authorities who • 
submitted a letter in support of the NIW petition, Professor who is 
unquestionably one of America's leading experts on Jewish-Muslim relations .... 
The AAO's failure to give due weight to Professor opinion was, at least in 
part, influenced by the AAO's own factual error regarding material that was in the 
record before it on appeal, an error which was incorporated by. reference in the 
November 14, Z:o12 Decision. . ' 
The purported error in question appears in the following passage from the AAO's April 2012 
decision: · 
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Professor ... stated that the ''booklet will enable many 
Americans to replace negative stereotypes which they now hold about Islam with a 
more balanced and positive view, based on an accurate portrayal of this great world 
culture." Prof. praised the booklet and. stated that the petitioner's use of 
geometric design "has been instrumental in enabling Americans to understand and 
appreciate this important part of Muslim art and culture." 
The record contains no circulation figures for the booklet, and no 
demographic information to show the extent to which the petitioner's graphic design 
ofthe booklet (as opposed to elements of the booklet outside the petitioner's control) 
has improved Americans' understanding and appreciation of Islamic culture. 
Therefore, any assertion to the effect that the booklet - and specifically the 
petitioner's work on the booklet- has improved American understanding of Muslim 
culture appears to be unsubstantiated speculation. 
As counsel acknowledges, the above passage appeared in the AAO's first decision in April 2012, 
although counsel did not dispute the passage in the May 2012 motion. Counsel claims that the 
quoted passage was erroneous because ''the record did in fact contain circulation figures for the 
booklet." Specifically, the petitioner submitted "a letter from The 
dated April 28, 2011 stating that 2,500 copies of the booklet were printed and that it was 
distributed to 730 · ." The AAO did not overlook that letter, as counsel 
claims. Rather, the AAO acknowledged and qll:oted that letter. From the April2012 decision: 
To support the reference to ''the widespread distribution of the booklet," 
the petitioner submits a letter from assistant counsel of the 
_ . who states "2,500 copies of this booklet were printed. 
Copies were distributed to 730 " Counsel fails to 
explain how these figures establish ''widespread distribution." The petitioner submits 
nothing to show that 2,500 copies is a particularly large print run for a publication of 
its kind, or the extent (if any) of the booklet's distribution outside the 
public school system. 
· In context, the AAO's comment about "circulation figures" was imprecise, but not incorrect; the 
AAO stated, in effect, that the petitioner had not established the booklet's distribution outside of the 
local school system. Ms. did not specifically say that the public school system 
received all of the booklets. If the schools did receive all of the booklets (which would be the only 
way that the letter accounted for the booklet's "circulation" rather than the size of its print run), then 
their distribution was limited to a particular locality. It: on the other hand, other-copies remained, 
the petitioner has not indicated what happened to them, and the petitioner has not shown that the 
AAO arrived at the wrong conclusion in this regard. 
(b)(6)Page7 
The question of the booklet's distribution is central to assertion that the booklet 
"has been instrumental in enabling Americans to understand and appreciate this important part of 
Muslim art and culture." The booklet can have such an effect only on those who have read it. If the 
distribution was largely limited to one city's public school system, as counsel appears to 
acknowledge on motion, then it is not evident how the booklet could have had a broader impact. 
Regarding the figures in Ms. letter, counsel states: 
While these may· not seem like large numbers in absolute terms, it is still not 
unreasonable to conclude that hundreds, if not thousands of school 
children in all likelihood had access to the booklet~ and that since the booklet was 
published by one of the most famous museums in America and the world, it had an 
influence for [sic] beyond 
Counsel's claims are vague, genera~ and speculative. The unsupported assertions of counsel do not 
constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). Conjectural assertions about how many students 
"in all likelihood had access to the booklet" say 
nothing about how many students actually read the booklet, or how many of them changed their 
attitudes about Islam and the Middle East based on the graphic design ofthe booklet. 
Counsel observed ''there was also additional 'demographic' evidence submitted with the appeal, namely 
an Internet printout showing that there were no less than 246 sites linking to the booklet, and that there 
had been 7,283 views." The printout in qu~stion frOm listed the "[s]ites linking to this 
publication," i.e., to the booklet. Most ofthe listed "sites" are, in fact, results pages from search engines 
such as Bing and Yahoo. Some others appear to be electronic mail messages. The "7,283 views" does 
not distinguish between one-time visitors and repeat visitors; a single reader· who referred back 
to the 
booklet several times might count multiple times in the cited total. The petitioner submits no 
comparative data to show that the petitioner's book has seen particularly wide distribution (as opposed 
to the potential for such distnbution). 
Counsel acknowledges that ''reasonable people can concededly differ over the significance of these 
figures," but asserts that the AAO erred by "ignor[ing] them completely'' and, thereby, "dismiss[ing] the 
opinion of a noted authority such as Dr. out ofhand." Dr. comments about how 
the booklet has changed attitudes about Islam are, inescapably, intertwined with the question of how 
many people have had meaningful exposure to the booklet. A handful of questionable figures, some 
devoid of meaningful context, do not establish a preponderance of evidence in the petitioner's favor. 
Even then, this dispute over details glosses over the larger point, which the AAO treated at length in 
previous decisions. Specifically, the AAO found that the petitioner had presented no credible evidence 
that the graphic design of a booklet about Islamic art has had significant impact on Islamic-American 
relations, a claim that became the keystone of the petitioner's waiver claim at some point after the filing 
of the petition. As the AAO has discussed at length in previous decisions, the petitioner was not the 
autho~ or principal creator of the booklet. Rather, she handled its graphic design. Therefore, even if the 
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petitioner had established that the booklet is widely read and influential (which the petitioner has not 
done), the petitioner would also have to show that the graphic design ofthe booklet was an important 
facet of its impact and influence. 
Because (1) the petitioner's own evidence made no reference to her re-employment in 2011; (2) the 
erroneous reference to was a peripheral observation that did not change the 
basic outcome of the decision; and (3) the petitioner has shown no prejudicial error regarding 
letter and the booklet's circulation, the petitioner has not shown that the AAO's decision 
was incorrect based on the evidence available at the time. The AAO will therefore dismiss the motion 
to reconsider. 
The AAO will, however, grant the motion to reopen, because it includes material new evidence. As 
noted previously, the has re-hired the petitioner. The petitioner submits a copy of a 
2012 job announcement from the _ web site, which reads, in part: 
Associate Curator oflslamic Art - Exhibitions 
(Full-time, permanent, non-union position) 
The seeks to appoint an Islamic art specialist to the endowed position 
ofHagop Kevorkian Associate Curator ofislamic Art. This is a permanent 21-hour per 
week position ... -. 
The successful candidate must have, at minimum, an advanced degree in the history of 
Islamic art (PhD. preferred) .... [A] reading knowledge of Arabic and/or Persian is 
requisite .... 
Work Schedule: Full time, 35 hours per week 
Counsel did not explain ttle relevance of this job announcement. The petitioner, who holds only a 
bachelor's degree in graphic design and no degree at all in "the history oflslamic art," does not appear 
to be qualified for the position. -The AAO notes that the job announcement contains contradictory 
information about the work schedule (21 hours per week versus 35). At best, the announcement 
establishes that the collects Islamic art. 
The petitioner submits a copy of a December 10, 2012 letter from human resources 
officer at the who states: 
The still intends to offer [the petitioner] permanent employment ~ .. 
as a Graphic Designer . . . in connection with preparation and promotion of a great 
· variety of our exhibits promoting inter-cultural tolerance and understanding, including 
but not limited to exhibits related to the art and culture of the Islamic world. 
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The letter is consistent with the AAO's prior conclusion that the petitioner's work at the Brooklyn 
Museum would not specialize in Islamic art, despite the single-minded focus on Islamic art that formed 
. the core ofthe national interest waiver claim. 
The petitioner submits printouts from the web site, detailing two exlubitions: '' 
descnbed as a "Long-Term Installation," and _ _ 
_" which ran from June 5 to September 6, 2009. The petitioner submits no evidence that 
she participated in the design ofthose exlubitions, or that the design of those exlubitions has contnbuted 
in any discernible way to mutual Islamic-American understanding. The printouts do not rebut the 
AAO's prior statement: ''The record does not identify any projects by the petitioner during her five 
years af the that addressed understanding of Islamic art." New evidence that the 
museum handles Islamic art does not force or imply the conclusion that the petitioner was involved in 
the projects identified on motion. Even if the petitioner was involved in those projects, the petitioner 
did not mention them before the second motion, making it difficult to claim, at this late juncture, that 
the newly-mentioned projects were of particular importance. 
The petitioner's motion has touched on specific points in prior AAO decisions, but has not addressed 
the fundamental issues underlying the AAO's dismissal of the appeal and the first motion. The 
petitioner has not shown that the prior decisions contained prejudicial errors that, by themselves, 
prevented the AAO from withdrawing the director's decision or approving the petition outright. The 
errors alleged on motion are either peripheral, or else are not "errors" at all. The newly submitted 
evidence clarifies the extent ofthe _ !I involvement in Islamic Art, but sheds no new 
light on the central claim that, as a graphic designer involved in preparing museum exhibits, the 
petitioner has had and continues to have a significant role in improving understanding and acceptance of 
Islamic cuhures. · 
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. 
ORDER: The AAO's decision of November 14, 2012 is affirmed. The petition remains denied 
and the appeal remains dismissed.