dismissed EB-2 NIW Case: Law

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
SRC 08 009 56666 MAR 2 6 2010 
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 PETITIONER: 
SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 4 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an attorney specializing in immigration law. 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. 
On appeal, the petitioner submits a brief, witness letters, and exhibits relating to his most recent 
activities. The petitioner states: "Section 103.2(b)(8) of the act requires The Service to issue a request 
for additional evidence . . . when additional evidence is missing." The petitioner refers, here, to a 
provision in U.S. Citizenship and Immigration Services (USCIS) regulations at 8 C.F.R. 5 103.2(b)(8); 
the petitioner mistakenly refers to this regulation as a section of the Act. An older version of the cited 
regulation required that, if "initial evidence or eligibility information is missing or the Service finds 
that the evidence submitted either does not fully establish eligibility for the requested benefit or 
raises underlying questions regarding eligibility, the Service shall request the missing initial 
evidence, and may request additional evidence." USCIS revised that regulation, however, before the 
petitioner filed his petition. See 72 Fed. Reg. 19100 (June 18,2007). The current regulation at 8 C.F.R. 
5 103.2(b)(8)(ii) states: "If all required initial evidence is not submitted with the application or 
petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or 
petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be 
submitted within a specified period of time as determined by USCIS." 
Because the issuance of a request for evidence is discretionary, and has been so throughout this 
proceeding, we can find no error in the director's decision not to issue such a notice. We will give 
due consideration to new evidence submitted on appeal. 
Section 203(b) of the Act states, in pertinent part: 
(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 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. 
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, 101 st Cong., 1st Sess., 1 1 (1989). 
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 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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. 
Page 4 
We also note that the regulation at 8 C.F.R. 5 204.5(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 offerllabor 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. 
The petitioner filed the petition on July 27,2007. In an accompanying statement, the petitioner asserted 
that, while there are many capable immigration attorneys in the United States, most "come from a 
society that is not remotely close to that of' their clients, which can result in communication problems. 
The petitioner asserts that, by having studied and earned degrees both in the United States and in his 
native Venezuela, he has a better understanding of "the reasoning behind why many Immigrants from 
Latin America and across the world would venture into the United States seeking for a better hture." 
Even if the petitioner's background gives him a better insight into the motivations of prospective 
immigrants, this does not explain why a waiver of the job offer requirement would be in the national 
interest. All intending immigrants are, by definition, from outside the United States, and their 
understanding of their native cultures does not broadly nullify or supersede the job offer requirement. 
To show that he has been active in his field beyond representing individual clients, the petitioner 
submitted copies of three Spanish-language newspaper columns he wrote. The petitioner asserts that 
he has "written articles for the Immigrant Times, La Voz, [and] Hispanic Days," but the record does 
not identify the publication(s) in which the submitted articles appeared. The petitioner failed to 
submit certified translations of the documents as required by 8 C.F.R. 5 103.2(b)(3). Therefore, the 
record does not establish the significance of these written pieces. 
The petitioner also stated that he has made numerous media appearances. In support of this claim, he 
submitted two DVDs. One shows a ten-second appearance on CNN Espanol, with no translation or 
explanation of the context of the appearance. The other disc is not compatible with available AAO 
computer equipment and therefore we cannot comment on its content. 
Letters from the American Bar Association (ABA) indicate that the beneficiary was a member of two 
committee steering groups of the ABA International Law Section in 2007-2008. The letters do not 
appear to offer clear descriptions of the beneficiary's responsibilities in these groups other than to state 
that "members of the Steering Groups . . . are all expected to actively and energetically lead their 
committees at all times." The petitioner's work with these committees, like his media exposure, lends 
national scope to his work. National scope is a necessary, but not sufficient, condition for the waiver. 
, who was a private attorney before he "was hired by. of the 
USCIS at the Department of Homeland Security," stated that the petitioner "has a distinctive character 
and an outstanding academic background. From our casual conversation, he demonstrated to me that he 
had remarkable knowledge of Immigration Law that would even embarrass some of the experienced 
practicing lawyers in New York City." General praise for the petitioner's skills does not provide a 
strong basis for granting the waiver. As we have already noted, exceptional ability in one's field is not 
presumptive grounds for approving the waiver application. 
The petitioner claims to have job offers fiom several law firms and the Spanish-language broadcast 
network Telemundo, but he asserts that they do not wish to file petitions or apply for labor certification 
on his behalf. The petitioner submitted no evidence to support these claims. 
The director denied the petition on November 4,2008. The director acknowledged the intrinsic merit of 
the legal profession and found that the petitioner's activities have national scope, but the director found 
that the petitioner had not submitted independent evidence of the importance and impact of the 
petitioner's work. 
On appeal, the petitioner cites his work with professional groups and the media as evidence that he 
"has reached a certain status within the profession of law." While prominence in one's field provides 
opportunities to serve the national interest, prominence itself is not evidence that one's work has 
served or will serve the national interest. The petitioner states: "I have been regarded by many as 
one of the top Immigration Lawyers in the nation and a future leader of the United States," but this 
passive sentence does not identify who has regarded the petitioner in this way. It is simply a claim 
of a particular reputation. 
The petitioner submitted materials relating to media appearances and professional activities in late 
2007 and 2008, after the petition's July 2007 filing date. An applicant or petitioner must establish 
that he or she is eligible for the requested benefit at the time of filing the application or petition. 
8 C.F.R. $ 103.2(b)(l). Therefore, subsequent events cannot retroactively establish eligibility. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). As with the petitioner's initial 
submission, many of these materials are in Spanish with no translation, certified or otherwise. Some 
are in Chinese, again with no translation. 
The petitioner has shown that he has participated in various panels and seminars, but he has not 
explained how these events (whether before or after the filing date) show that he qualifies for the 
national interest waiver. These events do not show what concrete effect his work has had. on 
immigrants' rights, the practice of immigration law, or other factors relating to his work. His 
professional credentials do not, on their face, demonstrate eligibility for the waiver. 
The petitioner submits several witness letters on appeal. - 
who has "worked closely [with the petitioner] in several different projects," states: 
I am confident and attest to his extraordinary ability in the field of U.S. Immigration 
Law, especially in Deportation and Removal Proceedings as well as in the area of 
Refugee & Asylum Law and defending victims of abuse under The Violence Against 
Woman [sic] Act. [The petitioner] is a high-profile figure in the U.S. Immigration 
Law field and is therefore well respected by his colleagues. He has achieved great 
Page 6 
success in practicing such field while helping many people in need all throughout the 
United States. 
[The petitioner] is presently the featured [sic] as an expert in U.S. Immigration Law 
in many televisions [sic], radio programs, newspapers and journals all throughout the 
United States. . . . He is truly the definition of "National Interest," due to his ability 
through these programs and his knowledge to reach audiences nationwide in a topic 
so diverse and important such as [sic] U.S. Immigration Law. 
in the letter quoted above, does little more than attest to the petitioner's credentials and 
activities in his field. 
A letter from contains no specific mention of the 
beneficiary's work. thanks the petitioner for his past correspondence and suggests that he 
subscribe to the representative's e-newsletter. The letter has many features of a "form" letter rather 
than individual correspondence. 
- of the Section of International Law at the ABA, discusses the petitioner's 
ABA activities after the 2007 filing date. His letter also contains the following paragraph: 
[The petitioner] has been a member of the ABA and the Section of International Law 
since 2003, having begun as a student member, and transitioning to lawyer status 
upon graduation from law school. [The petitioner] is an outstanding member of the 
Section. In addition to serving on 12 committees including a leadership role in the 
Young Lawyers' Interest Network, he is active in other Section activities including 
membership diversity initiatives in many parts of the world including Latin America, 
Africa and Asia. 
The letter from another ABA official, (director of membership), contains a very 
similar paragraph, shown below: 
[The petitioner] has been a member of the ABA and the Section of International Law 
since 2003 and began as a student member and transitioned to lawyer status upon 
graduation from law school. [The petitioner] is an outstanding member of the Section 
of International Law. In addition to serving on 12 committees including a leadership 
role in the Young Interest Network Committee, he also is active in other areas of the 
Section including diversity initiatives to increase Section membership among 
members of diverse groups and from around the world including Latin America, 
Africa and Asia. 
The use of similar (at times identical) language in two different letters raises the question of who 
actually wrote those letters. In any event, the director did not base the denial on the perception that 
the petitioner was not active enough in ABA section activities. 
, former president of the International Professional Association, offers the most 
specific discussion of the petitioner's past accomplishments. He states: 
[The petitioner] worked as my legal assistant for approximately 3 years at the 
International Professional Association. His work was outstanding and his 
contributions while there speak volumes of his ability. To his credit, he developed 
operating procedures for processing Reduction in Recruitment for U.S. Department of 
Labor Cases and operating procedures [for] newly introduced PERM cases also under 
the U.S. Department of Labor. This illustrates [the petitioner's] ability to create and 
implement innovative procedures. His creative thinking yielded significant increases 
in efficiency for such association [sic]. [The petitioner's] work has influenced the way 
immigration practitioners approach employment based strategies and case work. 
. . . He has represented clients throughout of [sic] the United States. He has appeared 
pro hac vice before the 2nd Circuit Courts [sic] and is presently pursuing a writ of 
Mandamus before the U.S. Supreme Court which if granted will re-define in some 
ways the standard for denying an affirmative political asylum (Asylum applied 
administratively, not while in proceedings). 
does not point to any documentary evidence to support the claims in his letter, nor does 
he identify the case that the petitioner hopes to take to the Supreme Court. Thus, while - 
credits the petitioner with specific influence in his field, the record offers no objective way to verify 
that influence. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as 
to whether they support the alien's eligibility. See id. at 795. USCIS may even give less weight to 
an opinion that is not corroborated, in accord with other information or is in any way questionable. 
Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
For reasons discussed above, the letters submitted on appeal are vague, uncorroborated, and/or 
irrelevant to the proceeding at hand. 
In supplements to the appeal dated March 2 and July 22, 2009, the petitioner documents several 
media appearances and other activities that took place in the early months of 2009. The petitioner's 
activities in early 2009 show that he remains active in his field, but for reasons we have already 
explained, they cannot demonstrate that he was already eligible for the waiver in mid-2007 when he 
filed the petition. 
Page 8 
The March 2009 supplement includes a letter from- 
who states: 
I have known [the petitioner] since 2007 through our cooperation in the American 
Bar Association's Section of International Law. We currently work together as vice- 
chairs in the Section of International Law's Young Lawyers Interest Network. 
[The petitioner] has proven time and again throughout his career that he is capable in 
assessing the needs and opportunities for his clients and future clients in the United 
States and I have the utmost confidence that he will continue to do so. 
Like most of the earlier letters, letter contains general praise for the petitioner's abilities 
but identifies no specific accomplishments to show that he qualifies for the waiver. 
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. The petitioner has shown that he is a very active and dedicated 
attorney, but the record offers little information about the petitioner's broader impact on the practice of 
immigration law. 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 decision 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.