dismissed EB-2 NIW Case: Law

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
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PUBLIC COPY 
FILE: LIN04205 52107 Office: NEBRASKA SERVICE CENTER Date: 
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. 
U 
%obert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 04 205 52 107 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. 5 1153(b)(2), as an alien of exceptional ability. The petitioner seeks employment as 
an attorney. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an 
alien employment certification, is in the national interest of the United States. The director found that 
the petitioner qualifies for classification as an alien of exceptional ability or 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, the petitioner made several assertions. He also indicated that he would submit a brief andlor 
evidence to this office within 30 days. The petitioner dated the appeal December 8, 2005. As of this 
date, more than a year later, this office has received nothing further. The appeal will be adjudicated 
based on the statements on the Form I-290B Notice of Appeal. For the reasons discussed below, we 
uphold the director's ultimate decision although we withdraw some of the standards set forth by the 
director. 
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 Attomey General may, when the Attomey 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. 
It appears from the record that the petitioner seeks classification as an alien of exceptional ability 
although he has never explained how he meets the requisite three out of six regulatory criteria set forth 
at 8 C.F.R. tj 204.5(k)(3)(ii). The petitioner's occupation falls within the pertinent regulatory definition 
of a profession. The petitioner earned a Bachelor of Laws from the University of Sierra Leone in 1998 
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and a "Master Certificate" fiom the University of Teramo in 2002. The petitioner did not submit an 
evaluation of these foreign credentials. The director did not contest that the petitioner qualifies for the 
classification sought either as an alien of exceptional ability or an advanced degree professional. The 
remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and 
thus an alien employment 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, 1 Olst Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service 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. 
8 
The director quoted the above language and stated that the record did not establish that the petitioner's 
"credentials exceed those of all aliens who seek to qualify as aliens of 'exceptional ability,' as that 
terms is defined" at 8 C.F.R. 5 204.5(k)(3)(ii). The director, however, ignores that the national interest 
waiver is available to both aliens of exceptional ability and advanced degree professionals. We know 
of no legal authority that requires an advanced degree professional to demonstrate that his credentials 
exceed those of all aliens seeking classification as aliens of exceptional ability to secure a national 
interest waiver. Rather, the benefit of this alien's entry into the United States must exceed the benefit 
inherent in admitting aliens of exceptional ability. For example, the benefit for aliens of exceptional 
ability not seeking a national interest waiver is not necessarily national in scope for each alien. See 
Matter ofNew York State Dep't of Transp., 22 I&N Dec. 215,217, n.3. (Cornrn. 1998.) 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. at 21 5, 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 seehng 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 onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
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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 proposes to work in an area of intrinsic merit, the 
legal profession. Next, we must consider whether the proposed benefits will be national in scope. In 
response to the director's request for additional evidence, the petitioner asserted that he would bring 
great diversity to the legal community and make the legal system accessible to underrepresented 
communities. The petitioner indicated that he specializes in immigration, family, criminal and 
insurance law and volunteers at the Neighborhood Legal Clinics. The director concluded that the 
proposed benefits of the petitioner's work would not be national in scope but would only benefit his 
local geographic area. 
On appeal, the petitioner asserts that the director "made a wrong judgment in assuming that [the 
petitioner's] practice is limited to only the local geographical area." The petitioner asserts that his 
practice is national. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm. 1998) (citing Matter of Treasure Craft of Calrfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Even assuming that the petitioner has clients from beyond his local area, he still cannot 
demonstrate that the impact of his services will be sufficiently national in scope. 
Matter of New York State Dep't of Transp., 22 I&N Dec. at 217, n.3, provides the following 
guidance: 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. 
Thus, Matter of New York State Dep't of Transp., 22 I&N Dec. at 217, provides clear guidance 
applicable in this matter. That case is a designated precedent and, thus, binding on all Citizenship 
and Immigration Services (CIS) employees. 8 C.F.R. fj 103.3(c). 
The assertion that the petitioner's cultural background in and of itself warrants a waiver of the labor 
certification process is not persuasive. The fact that the petitioner happens to originate from The 
Gambia and, thus, has international cultural experiences, is not evidence that he has or will make an 
impact on the field of law other than to benefit his specific clients, which, while having intrinsic 
merit, is not national in scope. If CIS were to accept that the petitioner's cultural experiences 
warrant approval of the waiver, CIS would need to approve the waiver for every alien with a degree 
in a profession that provides services to the public (lawyers, social workers, therapists, doctors, 
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psychologists, etc.) The petitioner has not established that Congress intended the national interest 
waiver to serve as a blanket waiver for all aliens providing services to the public. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. 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. Matter of New York 
State Dep 't of Transp., 22 I&N Dec. at 21 8. Moreover, it cannot suffice to state that the alien 
possesses useful skills, or a "unique background." Special or unusual knowledge or training does not 
inherently meet the national interest threshold. The issue of whether similarly-trained workers are 
available in the United States is an issue under the jurisdiction of the Department of Labor. Id. at 
221. 
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 he 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. 
The only evidence of the petitioner's specific achievements is his own statement chronicling his legal 
career. He emphasizes that he passed the Washington State Bar without having attended law school 
in the United States, but fails to explain how that personal achievement is significant to the field of 
law in general. While the petitioner may have several years of experience as a lawyer both in Africa 
and in the United States, the regulations indicate that ten years of progressive experience is one 
possible criterion that may be used to establish exceptional ability. 8 C.F.R. 5 204.5(k)(3)(ii)(B). 
Because exceptional ability, by itself, does not justify a waiver of the job offerllabor certification 
requirement, arguments hinging on the degree of experience required for the profession, while relevant, 
are not dispositive to the matter at hand. Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 
222. 
The petitioner has noted that he is self-employed. CIS acknowledges that there are certain occupations 
wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for 
an alien employment certification. While this fact will be given due consideration in appropriate cases, 
the inapplicability or unavailability of an alien employment certification cannot be viewed as sufficient 
cause for a national interest waiver; the petitioner still must demonstrate that the self-employed alien 
will serve the national interest to a substantially greater degree than do others in the same field. Id. at 
218, n. 5. 
The petitioner has not provided evidence that he has authored treatises, major texts, influential law 
review articles or otherwise influenced the field of law. He has not demonstrated that he has created a 
model for pro bono work that has influenced legal clinics nationwide. Without such evidence, he 
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cannot demonstrate that a waiver of the alien employment certification is warranted in the national 
interest. 
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 alien employment 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. tj 136 1. 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 certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.