dismissed EB-2 NIW Case: Information Technology

U.S. Department of Homeland Security 
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20 Mass Avc . N w , ~m ~~3042 
Wa\hlngton, DC 20529 
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WP d p-1 P~V~Y U. S. Citizenship 
and Immigration 
PUBLJC COPk 
FILE: EAC 03 020 54063 Office: VERMONT SERVICE CENTER Date: AUG 2 4 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. 5 1 153(b)(2) 
ON BEHALF OF FETITI~NER: 
INSTRUCTIONS: 
This is the decision of the 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. 
LpNw 
hoben P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 020 54063 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter 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. 3 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a senior programmer analyst at Coming Incorporated. 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. 
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. 
(R) 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 Uniteti 
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. 
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, 
10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published at 
56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services] 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 fiom, or waiver of, the job offer will be 
in the national interest. Each case is to be judged on its own merits. 
EAC 03 020 54063 
Page 3 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 21 5 (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. 
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 "prospective7' 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. 
The petitioner describes her past and present work: 
I work in the Environmental Products division of Corning Incorporated, a world-leading 
supplier of catalytic converter substrates, the key parts used to reduce pollution from mobile 
and stationary sources. . . . 
As a senior programmer analyst, my assignments here are working on the frontline of 
computer software developments and applications and delivering cutting-edge IT knowledge 
to the new product lines, including the following duties: 
- Initiate, lead and coordinate various projects as project leader to create and develop the 
whole IT system for new production lines; 
- Maintain and support IT systems for all the production areas . . . ; 
- Create and develop the GUI (graphical user interface) applications on the production . . . ; 
- Design the logical and physical data structures/models; 
- Setup, administrate and maintain the relational database management system . . . ; 
- Setup and maintain the Allen Bradley control systems; 
- Configure the hardware setup and IT Infrastructure system including Ethernet and Data 
Highway+; 
- Establish and develop the web report system and web applications using ASP, HTML, 
and XML. . . . 
I firmly believe that my talents in the information technology field can contribute a 
tremendous amount to the United States and her people. . . . 
Corning Incorporated [has initiated] a project which develops the ultra-thin-wall substrate . . . 
to help vehicle manufacturers produce the newest generation of ultra-low emission vehicles. 
. . . I played a critical role on this project as IT project leader, because without my work - the 
whole IT system would have no data and no information for the scientists and engineers to 
analyze the performance of the products. . . . 
Furthermore, my work releases American workers from manual data processing, since the 
warelpiece tracking system, defect tracking system I established on the lines provides the 
EAC 03 020 54063 
Page 4 
computer-based information processing which free[s] the workers from the boring and 
repeated paperwork. . . . 
[M]y work is to provide better information processing and management, thus to help efficient 
running of the American companies, and also my work will improve the leadership and 
competitiveness of American businesses. . . . 
On my master project [at] Rochester Institute of Technology, I created an on-line educational 
software "Teaching Tool for Computer graphics." This e-learning software provides free 
access . . . from anywhere through [the] internet; and creates a virtual learning/mentc~r 
environment. . . . 
Another project I have done [at] Corning Incorporated is to create easy-to-use human- 
machine interface and high automation which make education and training of workers easier 
and more convenient and help them learn how to operate high-technology machines. 
The petitioner submits several witness letters in support of the petition. A four-sentence letter from 
Representative Amo Houghton urges "every consideration" for the petition, but adds little of substance to the 
record, despite the petitioner's suggestion that this letter amounts to government endorsement of the petition. 
Several of the letters are from faculty members of Rochester Institute of Technology (RIT), where the 
petitioner earned her master's degree. Professor tafes: 
[The petitioner] created interactive graphics teaching tools to help children, high school and 
college students, and others interested in computer graphics understand the concepts of 
polygon clipping and two dimensional transformations. That tool has many functions for 
both teachers and students. . . . Since it is an on-line teaching tool which provides a new 
strategy on educational and professional arenas, the impact on improving the educational and 
training programs is significant. 
Professor 
h 
states: "My students still use [the petitioner's] project today. . . . The ability to 
produce t is kind of work serves to significantly improve educational and training programs, and her work is -- - 
freely accessible to anyone." Beyond RIT, the petitioner submits a copy of an electronic mail message that 
she received from A1 Byers, director of the National Science Teachers Association Institute, who indicates 
that the petitioner's program "is a valuable applet for high school teachers and students" and "[vlery 
impressive." These comments show that the petitioner created a useful program as part of her master's 
project, but they do not demonstrate that the petitioner's work has had a discernible effect on education at a 
national level. Simply developing a useful and worthwhile computer program is not, by itself, grounds for a 
national interest waiver; developing such programs is a basic job duty of programmer analysts who, generally, 
are subject to the statutory job offer requirement. 
Regarding her current work, the petitioner submits letters from several individuals at ncorporated. 
company's Ultra Thinwall Project manager, states that the petitioner's "work has benefited 
technology of two plants producing this product, [and therefore] she has [made] a direct 
contribution to improving the air quality of the Unite[d] States." The record contains no ijbjective 
documentation showing that the petitioner's work has measurably reduced pollution or improved air quality at 
a national level. We note that the petitioner is not responsible for the design or manufacture of the products 
themselves, and there is no reason to believe that these products would function any differently if another