dismissed EB-2 NIW Case: Journalism

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PUBLIC rn 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
4 
FILE: - Office: VERMONT SERVICE CENTER Date: DK 1 6 2005 
EAC 04 061 5 1308 
IN RE: 
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. g 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. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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. 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 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, counsel submits a brief and additional letters. 
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) . . . 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. 
The petitioner holds a Master's degree from George Washington University. The petitioner's occupation falls 
within the pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the 
professions holding an advanced degree. The remaining issue 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 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, I01 st Cong., I st Sess., 1 1 (1 989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991 ), states: 
Page 3 
The Sewice 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. 
Malter of New York State Dep % of Tramp., 22 I&N Dec, 2 15 (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 "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. 
We concur with the director that the petitioner works in an area of intrinsic merit, journalism. The director 
did not contest that the proposed benefits of her work "as a journalist at VOA [Voice of America] and as part 
of the broadcasting team that brings reliable and authoritative news to the world audience" would be national 
in scope. 
Initially, counsel asserted that the national interest would be adversely affected if a labor certification were 
required because the petitioner's combination of journalism skills and bilingual abilities are unique. Counsel 
further asserts that the labor certification process "would be very time consuming and could possibly 
interrupt the important work carried out by" the petitioner. Counsel asserts that VOA has difficulty finding 
qualified broadcasters and, thus, "the need for [the petitioner's] continued participation in her current work is 
urgent." At the time of filing, the petitioner had already stopped working for VOA and one of the initial 
letters from VOA asserts that it has no openings for the petitioner at this time. Thus, the initial materials 
submitted did not establish how the labor certification process would inconvenience the VOA. On appeal, 
the petitioner submits a new letter from the same individual at VOA asserting that as of January 2005, one 
year after the petition was filed, VOA was recruiting for contractor positions, and none of the respondents 
had journalism experience. This new letter asserts that if the waiver is granted, the petitioner "could start 
work as a contractor immediately." 
Nothing in the legislative history suggests that the national interest waiver was intended simply as a means for 
employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. Id. at 223. 
As of the date of filing, the petitioner had not worked for VOA for seven months. The record is simply not 
persuasive that it is the labor certification process that is delaying the petitioner's employment with VOA. 
Moreover, the new letter does not explain why journalism experience could not be listed on an application for 
Page 4 
labor certification for a broadcast position. Regardless, special or unusual knowledge or training, while perhaps 
attractive to the prospective U.S. employer, does not inherently meet the national interest threshold. Id. at 221. 
The fact that the beneficiary happens to originate from China and, thus, has international cultural 
experiences. is not evidence that she has or will make an impact on the field of journalism. If Citizenship and 
Immigration Services (CIS) were to accept that the beneficiary's cultural experiences warrant approval of the 
waiver, CIS would need to approve the waiver for every alien journalist. The petitioner has not established 
that Congress intended the national interest waiver to serve as a blanket waiver for all alien journalists. 
Counsel initially asserted that the petitioner's "proposed employment is in international broadcasting. 
Specifically, she is proposed to work as a journalist for the Mandarin Service of the Chinese Branch at the 
Voice of America." Dahren Luo, Chief of VOA's Mandarin Service, praises the petitioner's knowledge in 
journalism and international affairs and her language skills. As a "Purchase Order Vendor" the petitioner 
produced news stories and broadcasted them. Mr. Luo notes that VOA has a potential audience of 1.2 billion 
peopIe in China as well as Mandarin speakers outside of China. He does not indicate how many Chinese 
actually listen. For example, he does not indicate whether or not China jams VOA and, if so, how many 
Chinese listeners are known outside of China. As evidence of her potential influence, Mr. Luo notes her 
interview with a member of a human rights group and coverage of media censorship in China during the 
SARS outbreak. 
The petitioner, however, only had a temporary job with the VOA that had ended prior to filing the petition. 
Specificatly, William Baum, Chief of the Chinese Branch for VOA, asserts that the petitioner worked for 
VOA "as a Contractor in the Mandarin Service," where she "contributed to our current affairs and news 
programs, and she proved to be a reliable and promising journalist." Mr. Raum then states that VOA does 
not currently have any vacancies for full-time broadcasters. Thus, the record does not reflect that VOA was, 
at the time of filing, seeking to hire the petitioner full-time. The petitioner must establish eligibility as of that 
date. See 8 C.F.R. tj 103.2(b)(l 2); Mutter of Kutigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 197 1). Even on 
appeal, VOA only expresses an interest in utilizing the petitioner's services as a contractor. We note that a 
job with VOA is the sole basis of the petitioner's eligibility claim. Regardless, the petitioner has not 
established that a ten-month internship under an occupational training visa demonstrates a track record of 
success with some degree of influence on the field of journalism. 
At the time of filing, the petitioner was working for the Cross-Strait Interflow Prospect Foundation as a 
bilingual editor. According the ETA-750B signed by the petitioner, she was "translating/editing monthly 
reports, working papers, and yearly reports in English and Chinese." This information is confirmed by Tung 
Chen Yuan, director of the China Economic Analysis Project at the foundation. Mr. Yuan states: 
[The petitioner] takes charge of all translation work for monthly reports and working papers 
of this project. Doing an outstanding job of translating these reports into Chinese or English 
with her unique acquaintance with Chinese affairs and economic terminology, [the 
petitioner] is making a great contribution to this project. With her excellent work, the 
academic reports written by worldwide scholars, including Chinese scholars, are published in 
both Chinese and English to provide analyses on current Chinese economic development and 
its implication for regionat economies. 
Thus, while accurate translations of the reports are important, the petitioner does not appear to be responsible 
for the content of the reports. Thus, the petitioner has not established how this work is evidence of a track 
record of success with some degree of influence on the field ofjournalislh. 
Patricia Phalen, Director of Graduate Studies at the George Washington University, praises the petitioner's 
initiative in learning English and finding the internship with VOA. Ms. Phalen, however, does not explain 
the petitioner's influence on the field of journalism. 
The petitioner submitted her stories and translations. It is inherent in the field of journalism to write stories 
and inherent to the position of translator to translate. The petitioner has not demonstrated the impact these 
stories and translations have had in the field of journalism. Simply covering a significant story is not 
evidence of the journalist's impact in the field. 
On appeal, the petitioner submits evidence that she returned to VOA in August 2004 and reported on several 
other stories for the VOA. All of the accomplishments discussed on appeal, however, occurred after the date 
of filing. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. 103,2(b)(12); 
Matter of Kutigbak, 14 I&N Dec. at 49. 
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. 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 she 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. 
We do not question the national interest of broadcasting VOA. Moreover, the petitioner has established her 
competence and qualification for a contracting job with VOA. She has produced stories that are well received 
by her employers. The record, however, lacks evidence of the petitioner's track record of success with a 
demonstrable influence in the field of journalism. 
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 labor 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 a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.