dismissed EB-2 NIW Case: Healthcare Management

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U$. Department of Homeland Security
20 ·Mass. Ave., N.W.,Rm. 3000
Washington;DC 20529 I
u.S. Citizenship
and Immigration
Services
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SRC 06 ~OO 05910
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Office: TEXAS SERVICE CENTER Date:
MAY 03 ·zIn
. ,IN.RE: Petitioner:
Beneficiary:
PETITION:
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Immigrant Petition for Alien Worker as aMe~ber of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) o~the Immigration
and Nationality Act, 8 U.S.c. § 1153(b)(2) . .
ON BEHALF OF PETITIONER:
~. '
INSTRUCTIONS:
This is the decision ofthe Administrative Appeals Office in your case. Ail documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office. .
.~IL])~dCr. .Robert P. Wiemann, Chief
~ Administrative Appeals Office
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www',uscis.gov
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DISCUSSION: The Director; Texas Service Center, denied the employment-based inimigrant visa
petition~ which is now before the Administrative Appeals Office on appeal. The appeal. will be. .
dismissed.
The petitioner seeks to classify the beneficiary pUrsuant to section 203(b)(2) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § l153(b)(2), as an alien of exceptional ability or a member of the
,professions holding an advanced degree. Thepetitioner seeks to employ the beneficiary as an executive
or manager. The petitioner asserts that an exemption from the requirement of a job offer, and thus ofan
. alien employment certification, is in the national interest of the United States: The director did not
, reach the issue of whethertne .beneficiary qualifies for the classification sought; rather, the sole basis of
the director's decision is that the petitioner had not established that an exemption from the requirement
of a job olferwouldbe in the national interest of the United States.
On appeal, Counsel submits a brief asserting' that the· director misunderstood the . be~eficiary' s
background and the proposed employment. W~. find that the director's analysis follows from the plain
.language of prior statements, including those by counsel. As will be discussed in more detail belo~,
counsel's new assertions are not supported by the record and are not persuasive. '
. i.
Moreover, an application or petition that fails to' comply with the technical requirements of ~e law
. may be deniedby the AAOeven if the Service Center does not identify all of the grounds for denial
in the initial decision. See Spencer Enterprises;Inc. v. United States, 229 F. Supp. 2d 1025, 1043
(E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS; 891 F.2d 9,97;:1002 n. 9 .
(2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis)~ Thu~,beyond the decision
of the director, we find that the beneficiary does not qualify for the classification sought as either a
member of the professio~s with an advanced degree' Of'an alien of exceptional ability .
. Se<;:tion203(b) of the Ad states in pertinent part that:
(2). Aliens Who Are 'lVfembers of the Professions HoldIng AdvartQedbegrees or. Aliens of
Exceptional Ability. --
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'. (1\) In General. ,.- Visas shall be made avaiiable ... to qualified imniigrarits 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, .willsubstanti~IlY"
benefit prospectively the national economy; cultural or educational interests; or welfare
. of the United States, and whose services iIi the sciences, arts, professions, or buSiness
are sought by an employer in the United States.
(B) W~iver of Job Offer.
, (i) .. : the AttorneyGeneral may, when the Attorney General deems it to
be in the .national interest, waive the requirement ,of subparagraph (A)'
that an ali~n's services in the sciences, arts, professions, or business be
sought by an employerin the United St~tes.
The beneficiary holds a Master's in Business Administration (MBA) from Florida International
University and, thus, possesses' an advanced degree. ,We must examine, therefore, whether the
beneficiary is a member of the professions.
As defined at Section 101(a)(32) of the act, profession "shall include but not be limited to architects,
, erigineers~ lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges,
academies, or seminaries." The regulation at8 C.F.R. § 204.5(k)(2)defines "profession" as follows:
'[O]ne of the occupations listed in section 101(a)(32) of the Act, as well as any
occupation for which a United States baccalaureate degree or its foreign equivalent is ,
the minimum requirement for entry into the occupation. "
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On Part 6 of the petition~ the petitioner indicated that the proposed job fell under the ','Executives&
Managers" category, The petitioner listed the Standard Occupational Classification (SOC) code as,
11-9111, which relates to Medical and 'Health Services Managers. According to the U.S.
Department of Labor's Occupational Outlook Handbook at 59, this code ryfers to those who plan,
direct, coordinate and supervise the delivery of health care for a health careprovider. The petitioner
is not a health care provider but a nutritional supplement distributor. Specificall>"the re90rd does
not suggest that the petitioner employs health care providers who see and treat patients. Thus,the
petitioner does not appear to have provided an applicable SOC code.
In response to the director's notice of intent to deny the petition, counsel asserted that the beneficiary
was "uniquely qualified for the job of Director of Health Care Products."" The unsupported
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA
, 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA1983); Matter of Ramirez-Sanchez;.17 I&N Dec.
503, 506 (BIA 1980)., On the petition itself, the petitioner listed the beneficiary's job duties as
follows: "Direct nationwide projects to educate and disseminate.~' The petitioner also submitted a
letter from its President, ' discussing the beneficiary's experience and asserting that he
has the expertise to disseminate information and playa key role in the development of new products.
Mr. _concludes that the beneficiary will contribute to the U.S.,national interest "by directing
the distribution and use of as an anti-cancertherapy in the field of health care.",
On appeal, counsel asserts that the beneficiary "will be engaged primarily in quality control of the
product at point of sale:" As stated above, the unsupported assertions of counsel do not constitute ,
evidence. Id. Ultimately, the record is inconsistent as to exactly what the beneficiary's job title and
duties will be. Without this information, we cannot determine whether or not the position requires a
U.S. baccalaureate or foreign, equivalent degree. Thus, while the beneficiary may possess an
advanced degree, the petitioner has not established that the beneficiary will be employed' as a
member of the professions. ' ' A
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"
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,,~age 4
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Cou~sel has also asserted ~hat the beneficiary is an alien of exceptional ability in business. Th~'
regulation at 8 C.F.R. §, 204';5(k)(3)(ii) sets forth six criteria, at least three of which an alien must
meet in order to qualify as an alien of exceptional ability in the sciences, the arts~ or business. These
criteria follow below. ' ,
The regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as' "a degree of e~pertise
significantly above, that ordinarily encounteted." Therefore, eviaence, submitted to establish
exceptional ability must somehow place the alien above others in the field in order to fulfill the
criteria below; qualifications possessed by every t:nember ofa given field cannot demonstrate "a
degree of expertise significantly above that ordinarily encountered.", In response to the director's
notice of intent to deny, counsel highlightedthe last four of the six'criteria, implying that those were
the criteria the beneficiaryis alleged to meet. The following discussion by counsel and the evidence
submitted, however, does not necessarily correlate' with the criteri~ highlighted. ' Thus, we will
discuss all six criteria. ' '
A~ official ac;:ademicrecord showing that the alien has,a degree, diploma; ce~tificate, or similar
awardfrom 'a college; university, schoo!, or other institution of learning relating to the area. of
exceptional ability
Counsel does not highlight' this criterion. We note, however,'that the beneficiary received an MBA. '
Section 203(b)(2)(C) of the ACt provides that 'the possession of a degree, diploma; certificate or
siinilar award 'from a college, university school or other institution of learning shall not by 'itself be'
considered sufficient evidence of exceptional ability. Thus, we, must determine wheth~r the
benefici'ary's degree is indicative of or consistent with a degree of expertise significantly above that
ordinarily encountered. As stated above, the petitioner has not established that the beneficiary is a '
, member of the professions., If even a U.S. baccalaureate or a foreign equivalent degree is not
;, requIred,fQt the beneficiary's occupation, than"hisMBA is sufficient to meet this critericm.
Evidence tn the form ofletter(s) from current or former employer(s} showing thatthe alicm has at
,", , lepst ten yea!s offull-time experience in the occupation for which he or she is being sought
C'ounsel did not a~sertthatthe benefiCiarymeets this criterion and the record does not cOI~iain letters,
~om employers documenting ten years of experience. " ,
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,A lic.~nse to prp.ctice the profession or certification for a particular professio~or' o'ccupation ','
While counsel' highlighted this criterion, counsel, only discusses the beneficiary's' MBA. ' The
petitio~er's MBA" however, 'has already been considered above. It is a degree, noti a license, and,
thus, is best considered\mder that criterion.
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- Evidenc€; that the alien' has commanded a salary, or other remuneration for services, which
demonstrates exceptional ability
Counsel highlights this criterion in his brief but fails to explain what·evidence,is being submitted to
meet this criterion. The record contains no evidence of the beneficiary's past remuneration or
.,comparable data that would allow us to consider whether the beneficiary's remuneration is indicative
of a degree of expertise significantly'above that ordinarily encountered. .
Evidence ofmembership in professional associp.tions
, The petitioner submits evidence of the beneficiary's membership in the National Society of Hispanic
MBAs. The petitioner, however, failed to submitariy evidence of the membership criteria for this
.society. In,fact, even an MBA does not appear 'necessary for this soci~ty as the petitioner joined in
September 1999 but did not receive his MBA until April 2000. Thus, we cimnot determine whether
this membership is indicative ofa degree of expertise significantly above that ordinarily ep.countere4.
The petitioner also submitted evidence that the beneficiary was elected to membership in the
academic honor society Phi Kappa Phi. This membership appears to be an academic rather than a
professional association. . .
Counsel asserts:
[The beneficiary] has been recognized for ·his achievements and' significant
contributions ·to the field of alternative medicine, with a focus onnutritiona1 and
herbal supplements to immunize humans against ~ancer. [The beneficiary's] k~y
achievements are his more' than 15' years of experience in the field of alternative
health care management and finance.' ..
. ..' .
The regulati~n at 8 C.F.R. § 204.5(k)(3)(ii)(B) provides a separatecriteriori for evidence of at least .
.10 years of experience. Thus, it does not appear that experience aione is sufficient to meet this"
separate criterion. Regardless; the record does not contain letters from all of the beneficiary's'
employers documenting 15 years of experience as required under 8 C.F.R; § 204.5(k)(3)(ii)(B) .. and
8 C.F.R. § 204.5(g)(I) ..
Counsel continues:
[The beneficiary] has a profound krto~ledgeof
••IIIIIII•••harvesting,and its applications-in the nutritional supplement market
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because of his skill as a researcher, having studied over 200 plants and herbs in the
Brazilian rainforest region.
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Counsel then discusses the beneficiary's work on a database on the cancer-inhibiting. effects of
•••••• and the beneficiary's work facilitating the import ,of this mushroom. The record,
however, lacks any evidence that the beneficiary has been f01Jllally recognized by his peers,
government entities or professional or business organizations. Specifically, the record contains no
,certificates of recognition, awards'or comparable form~l recognition.
. .
As the petitioner has not demonstrated that the beneficiary is a member of the professions or an alien
of exceptional ability, the issue of whether waiving the job offer requirement is in the national
interest is moot. Nevertheless, 'Ye will address this issue as it was the sole basis of the director's
decision. .
'. Neither the sta,tutenor pertinent regulations define the term "national interest." 'Additionally, 'Congress
did not provide a specific definition of "in theriational 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 (NoveIllber29, 1991), states:
The Service believes it appropriate to leave the application ofthis test as 'flexible as
possible, although clearly an alien seekIng to meet the [national interest] standard must
make a sh()w~ng significantly above tha~ necessary to prove the "prospective national
benefit" [required of aliens seeking,to qualify as "exc;eptional."] .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 Ne~ Yprk State Dep't. of Transp., 22 I&N Dec. 215 (Comm. 1998), h~s set forth several
.factors which mustbe 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 i~ scope. Finally, the petitioner seeking the waiver
must establish that the alien·will serve the tuitional interest to a substantially greater degree than would
an availabie U~. worker having the same minim~ qualifications.
It must be not~d that, while the national interest ~aiver'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 'f¥ture c~ntributions by the alien, rather than to facilitate the entry of an alien
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with no demonstrable prior achievements, and w40se benefit to the national interest would thus be
, entirely speculative. '
We concur with the director that the field of health supplement distribution c~m have, on a case-by­
'case basis, intrinsic merit. We note that the record contains several research articles published in
peer-reviewed general medical journals investigating'the health effects of the••••••••
mushroom. The research involves clinical studi~s at reputable medical universities and does not rely
on anecdotal evidence alone.
In addressing the issue'ofwhether the proposed benefits ofth~ beneficiary's work would be national
in scope, counsel stated that tJ:1e beneficiary's, familiarity with the mushroom
and the studies relating to its medical properties, experience with presentations on the mushroom and
"training for quality control" for the importation of the ,nushroom' and ability to disseminate
information about the mushroom were significant considerations." This statement by counsel is the
only reference prior to appeal to "quality control," ~d is unsupported bythe remaining evidence.'
Counsel references a letter 'from Dr. '; graduate of. the Southwest College of
Naturopathic Mediclne,who asserts that the beneficiary introduced the
mushroom to the United States through the petitioning company and that the petitioner's website is'
improving the information available to the general public in ~he United States about the mushroom.
· Counsel concludes that "the research at [the petitioning company] will be utilized for the ·benefit of
, citizens of the United States and the world as a: whole.''";..'.
The director'noted the lack of evidence that the beneficiary himself has been or'will be engaged in
research and concluded that the proposed benefi~s of the beneficiary's work would not be national in
scope. On appeal, counsel asserts that the beneficiary will be responsible for thequillity control of
tl)e mushroom extracts; sold and distributed thf~>ughout the entire United States. Counsel asserts that'
the beneficiary's qualifications (or this 'are,explained in Mr. ; letter.' Mr. L, however,
does not address the, issue of 'quality control. Rather, Mr. Pinotti discusses the beneficiary's
development' of training seminars that seem to simply promote the research into the healing benefits
· and chemical composition of various mushrooms.:Notably, while counsel.asserts that the beneficiary
is not a researcher, Mr. . references the beneficiary's "primary rese~ch focus through training
· sessions devoted to the chemistry of the plant's composition." We note that the beneficiary has no
formal education ,in botany or medical science~ . Counsel then discusses the,importange of qualitycontrol. . . . '., .
It is of som~ concern that the record is not entrrely. c~nsistent ~s to what the beneficiary will, be
doing. Nevertheless, we find Ahat the proposed benefits, of the beneficiary's work, increased
awareness of the potential health benefits ofthe Brazilian mushroom and the availability of quality
extract of this mushroom have the potential'to be national in scope.
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It relliains, theil, to detennin~ whether the benefttiary ~ill benefit the national interest to a greater
,extent than an available U.S': worker with the same minimum,qualifications.' The bulk of the record
is devoted,to the benefits of the Brazilian mushroom itself. ' Much of this research was conducted in
,Japm and Korea. Thus, clearly, knowledge of the mushrooni and its effects are not limited to BraziL
In fact, researchers at the University of California, 'Davis, authored a review article on the subject in
2004, revealing some awareness of mushrooms as nutritional supplements within the United States
research community. ' "
Assuming the importance of educating the U.S. public about the potential 'health effects of a
Brazilian mushroom and making quality supplements available, ,elIgibility for the waiver must rest
, , with the alien's own qualifications ratherthan with the position sought. In other words, we generally
do not accept the argument that.a givt?n project is s6 important that any alien qualified to work on
this project must also qualify for a natiomil inter~st waiver. Matter of New York State Dep't of
, Transp:, 22 I&N Dec.at 218; •
'In response to the director's notice of intent to'deny, counsel asserted: ,
"
The research skills and experience that [the:beneficiary] brings to the Uriited'States
are extensive and exceed those of any available u.s. worker~' No other re,seafch
professio'fJ.als.can match his deep knowledge in the, field acquired over years of
,research and study in Brazil where the pnmary findings of the health benefits ofthe ..
.' Agaricus Brasiliensis mushroom have been made. His combinationbf extensive,
, training, expenenceand expertise is unique. ,
The singular importance of [the beneficiary~ s]" ~esearch ~d inst~ctional. work. with
the Agaricus blazei mushroom is noted by Dr ) ND, Ph.D. who has
known [the beneficiaryI for many years and who is a Senior Course Administrator and ,
Author of several courses for CEUHS.com, an online provider of 'continuing
education courses for health professionals.
. (Emphasis added.) Counsel concludes that the opinions of professionals who know the beneficiary's
workestahlish that the beneficiary "has a level of knowledge, {(xperience,initiative and'research
skills"thatcannot be matched by another researcher,.;' (Emphasis added.) ,
"
, Mr. i asserts':that the beneficiary will "piay a key role in the ~evelopment of new produ~ts in,
which is used as a compound," and affirms that the mushroom "occupied {the
heneficiary's] . primary research focus."', (Emphasis added.) .' ., DC,' NMD, a
chiropractor in Arizona, asserts that it is,"paramount that research is conducted and published in the'
United States, and [the beneficiary] is specifically qualified for this purpose" because researchers in
the United States lack ,experience'with the cultivation, extraction and processing techniques.
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The director n~t~d that the beneficiary did not author "the research contained i~ the record., On
appeal, counsel asserts that the "generalized language in the petition and, documents may have given
the impression, 'inadvertently, that the beneficiary would be engaged tn research:" Given the
. ' multiple :unambigUous references to research quoted above including many by counsel himself,
.counsel's" current 'characterization of' the references' as "generalized" and "inadvertent" is
;questionable. Regardless, counsel now asserts that the beneficiary. will not, in' fact,' be engaging in
research or even education and training but quality controL Counsel notes that the nan-technical jpb
...description indicates that the beneficiary will .be directing nationwide projects to ,educate and
disseminate anti-aging health aides and products for,the prevention of other diseases and that "the
manner i:9 which these objectives are achieved is by extensive quality control." Counsel is not
.' persuasive .. Personally providing education and training and developing educational materials have.
little'relati<;>nto dire~tly overseeing quality control. .' Rather, it would appear that counsel is now
, .c()mpletely changing the :nature of the beneficiary's proposed employment.
The ·bep.eficiaiy's job title arid job duties are. material to the petition. A 'petitiorier may not make
material changes to a petition that has already been filed in an effort to make an apparently deficient
petition conformto CIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 175 (CQmm~ 1998).
Moreover, "it is incumben~, upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not
suffice unless the petitioner submits competent objeCtive evidence pointingtb, where the tn.l;th lies.
Matter ofHo; 19 I&N Dec. 582, 591-92 (BIA 1988); The record does not resolve the inconsistencies
regarding the beneficiary's proposed employment. Nevertheless, in order to render an~orethorouih
.decision; it is worthwhile to consider all ofthe·claims made throughout this proceeding.' '"
· Mr. asserts that the beneficiary "is highly' qualified on many .levels with the cultivation,
· storage, and transportation of dehydrated and· ntulched mushrooms." "Mr.
•••. further asserts that the beneficiary has knowledge of the processing methods to ensure full
potency. Mr. . continues that these skills are "not possessed by the U.S. workforce." ,
Similarly, Dr. .assert~ that the beneficiary' "is the', only pers<;>n qualified to promote this
Brazilian nutritional supplementinthe U.S.A. due to his unique knowledgeandexpenencewith the
product." Finally, Mr.' aSserts that. the beneficiary is' ''uniquely. qualified" .to ~sist U;8. "
physicians, researchers and. the media with communications with Brazilian doctors' and scientists.
On appeal, counsel feite~ates, these claims, asserting that the only training for the,behefici~'s
proposed duties is in Brazil and that there are no available U.S. workers with similar skills and
training.
· It c~otsuffice'to state that,the alien possesses~ useful skills, or a "unique background.;' Simple'
exposure to advanc~ tec;hnologyconstitutes, essentially, occupational tr~ining which can be articulated
on an application for an alien employment certifi~ation. Special or unusual knowleqge or training;
· while perhaps attractive,to the prospective U.S. employer, does not inherently m~et the national interest
threshold. Maiter of New York State Dep't of Transp., 22 I&N Dec. at 221. 'The issue of whether
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Page 10.
similarly-trained workers are available in the United .states is an issue under the jurisdiction of the
Department of Labor. !d.
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·At issue is whether this beneficiary's contributions in the <field are of such unusual significance that
the petitioner merits the special .. benefit of a national interest waiver, o·ver and abov~ the visa
classification sought. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate that the beneficiary has a past history of achievement with some
·degree of influence on the field as a whole. Id. at 219, n.6.
Counsel does not challenge the director's conclusion that petitioner has not established that the.
· beneficiary has a record of research. accomplishments. At issue, then, are· the beneficiary's
accomplishments in promotion, education, training and quality control.
We will review th~ letters below.· At the outset, ho~~ver, we note that Citizenship and Immigration
· Services (CIS) ·may, in its discretion, use as advisory opinions statements submitted as expert'
testimony. See Matter ofCaron International,. 19 I&N Dec. 791, 795 (Comm. 1988). However, CIS
is ultimately responsible fOr making the final determination regarding analien'seligibility 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 ~upport the
alien's eligibility. See Jd. at 795-796. CIS may even give less weight to ·anopinionthat is not
corroborated, in accord with other ·inforrnatiot:lor is in any way questionable. Id. at 795; Seealso
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190.(Reg. Camm. 1972)).
In. evaluating the reference letters, we note that letters containing mere assertions of experience,
knowledge and qualifications are less persuasive than letters that provide specific examples of how
the beneficiary has influenced the. field. In addition, the most persuasive letters are from
independent references who were previously aware ofthe beneficiary through his reputation and who
have been influence by his work..
Mr. .discusses the beneficiary's ·involvement with various researchers in Brazil, but fails to·
, provide examples of the beneficiary's own accomplishments. Similarly, Dr. _ asserts that the
beneficiary has the necessary kllowledge to promote.the Brazilian mushroom among health providers
·and the public but fails to provide examples of how the beneficiiuy has already impacted the field.
Dr. S16I2LI notes that the petitioner's website provides useful information, but does not explicitly
state that the beneficiary prepared the materials on the website. In fact, the record reveals that it is
Dr. ~who has prepared at least some informational materials. for the petitioner. Regardless, the
record lacks evidence establishing that the petitioner's website has been notably influential.
_ .provides a personal accOunt of her 'own experience with imtritional healing. Scientific
double blind studies carry tnuch more weight than"individual anecdotes. Regardless, Ms. .
does not discuss the beneficiary's past accomplIshments; rather, she simply promotes the use of
mushrooms in nutritional healing. Mr. ' asserts that the beneficiaiy has prepared summaries
Page 11 .
of recent research and has "participated with the leading scientist's and researchers of .lls•••
••••. in Brazil." Mr.· " does not explain how he has first-hand knowledge of this
experience or how the beneficiary's contributions have impacted the field..
Finally, on appeal, counsel discusses at length thee1.ements of quality control· and asserts that the
beneficiary is "qualified, experienced and trained to perform these subjective tests." While counsel
asserts that this "fact has been established in the record file," ,the r~cord contains no discussion of the
beneficiary's past work relating to quality control. As discussed above, knowledge about cultivating,
processing imd promoting the health benefits of a mushroom do not necessarily translate into quality
control expertise. Regardl~ss, the record contains no evidence from past employers, growers,
manufacturers or researchers confirming the benefiCiary's alleged experience in these areas. The
record certainly contains no' evidence that the beneficiary has .ever worked in quality control for a"
distributor of mushroom extracts. .
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 professionin 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. '
For theabove stated reasons, cQhsideredboth in sum alldas separategroundsf6r denial, the petItion
may not be approved. The burden of proof in these proceedings rests solely·with the petitioner.
Section 2910fthe 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 certific~tion certified by the Department of Labor, appropriate
supporting evidence and fee. ., .
ORDER: The appeal is dismissed. '