dismissed EB-2 NIW Case: Law

'identifYing data deJeted to 
prev~nt clearly unwarrantec 
invasIOn of personaJ privacy 
PtmLIC COpy 
U.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
JUl 0 7 2011 
OFFICE: NEBRASKA SERVICE CENTER 
INRE: 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska 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. § 11S3(b )(2), as an alien of exceptional ability and as a member of the professions 
holding an advanced degree. The petitioner seeks employment as an attorney. 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 ofajob offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief, later supplemented with evidence regarding his credentials. 
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 AAO agrees with the director that a separate finding regarding his claim of 
exceptional ability would be of no benefit to the petitioner. 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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 10Ist Cong., 1st Sess., II (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 U.S. Citizenship and Immigration Services (USCIS)] 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 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 a/New York State Dept. a/Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 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. 
The AAO also notes that the regulation at 8 C.F.R. § 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 offer/labor 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 Form 1-140 petition on his own In a letter 
that accompanied the initial submission, the petitioner stated: "as a self-employed alien, I have 
served the national interest to a substantially greater degree than do others in the same field oflaw." 
In this respect, the petitioner noted three lines of evidence (exhibit citations omitted): 
Page 4 
A. Recognition by and commendation from the incumbent President of the United 
States, President George W. Bush in a letter written to me personally. 
The letter reads as follows: 
"Dear Friend, on behalf of the entire leadership of your Republican Party, I would 
like to express our gratitude for all of your help. Due to your tireless efforts, 
we've been able to make so much progress here in Washington D.C[.] to keep our 
citizens safe, our economy prosperous and our families free. Thank you for 
agreeing to serve as a National Co-sponsor of the President's Dinner. ... " 
It should be noted that I am not a registered voter in the United States and do not 
belong to any political party. I believe our President referred to the Republican 
Party because he became the President under its platform. The letter from the 
President of the United States alone should be sufficient to qualify me for a 
national interest waiver because that letter came from the most powerful man on 
earth and the highest office holder in the United States. 
B. Conferment of major awards on me by distinguished state and national 
organizations: 
The awards have been conferred on me to date: 
I. award for pro bono legal services by the State Bar 
11. 
111. 
of California. 
_~~by 
recogmhon of outstanding service and 
commitment to Republican ideals, and in particular for assistance and 
leadership in promoting a pro-business agenda including tax reform and 
fiscal responsibility." 
by the _ because "they 
said, in worthy and honest pursuit, has unequivocally earned this good and 
high tribute in recognition of their undying commitment, patriotic loyalty 
and dedication of service to President George W. Bush, the Republican 
Party and the United States of America." 
IV. Admission into 
C. Rendition of valuable advice at Washington D.C. to the United States 
Government at the invitation of the government on three separate occasions. 
I was invited to Washington D.C. by the representatives of the United States 
Government on four separate occasions. I honored three out of the four 
invitations because I was sick on one occasion. I was invited to render legal 
opinion on some sensitive issues facing the United States such as immigration and 
tax reforms, border control and safety, withdrawal of troops from Iraq, among 
others. To the best of my knowledge, I was the only lawyer representing the State 
of California on each occasion. . . . In addition, each occasion included my 
attendance at the Presidential Dinner with President George Walker Bush, 
incumbent President of the United States. 
Page 5 
The above list purports to show repeated high-level recognition of the petitioner, but is utterly silent 
as to the specific nature of the contributions that earned him that recognition. Also, almost none of 
the above claimed honors have anything to do with the~ice of law, the exception 
being Award that the petitione~. That award certificate 
acknowledged the petitioner's "voluntary provision of legal services to the poor." There is no 
evidence in the record about the significance of this award, or whether an attorney must meet any 
criteria other than provision of pro bono legal services to qualify for the award. In the absence of 
such evidence, the certificate in the record shows only that the petitioner provided an unspecified 
number of hours of pro bono legal services. The petitioner, in his introductory statement, repeatedly 
cites Matter 0/ New York State Dept. o/Transportation, but he did not quote the following passage: 
"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." Id. at 
217 n.3. 
All of the other cited materials relate directly to acknowledgment of campaign donations from the 
pe1[iti'Dn(!r to various partisan election committees. The petitioner asserts that the letter from 
is, by itself, strong evidence that he qualifies for the waiver. The petitioner 
minimizes the reference to "your Republican party," stating: "I believe our President referred to the 
Republican Party because he became the President under its platform." In quoting from the letter, 
the petitioner omitted this passage: "your support will go a long way toward maintaining and 
expanding our U.S. House and Senate majorities in the Fall." The' in fine 
print at the bottom of the letter: "Paid for The a joint 
~lCir;~~ committee on behalf of the and the 
Imr,,,r' was a partIsan fundraising event in support of Republican candidates for Congress. 
The petitioner submitted copies of several certificates from the _ some of which also mention 
the House Republican Trust. With respect to the petitioner's claim that he "was invited to render 
legal opinion" "by the representatives of the United States Government," the record contains a copy 
of an invitation which reads: 
House Republican 
* TRUST * 
THE REPUBLICAN MEMBERS 
OF 
THE U.S. HOUSE OF REPRESENTATIVES 
cordially invite 
[the petitioner] 
as a 
Member of the 
HOUSE REPUBLICAN TRUST 
representing California at the 
--Page 6 
and the 
There is no evidence that any government agency or entity solicited the petitioner's advice or 
opinions on matters of policy. Instead, the invitations such as the above appear to relate to still more 
partisan fundraising events. 
On the director advised the petitioner of the director's intent to deny the 
c1ir,eri,,, acknowledged that the petitioner qualifies as a member of the professions 
holding an advanced degree, but found that the petitioner had not shown for the national 
interest waiver. The director stated that the petitioner received the letter from a 
thank you for co-sponsoring The President's Dinner, not in recognition for any achievements or 
significant contributions the petitioner may have as an attorney at law." The director stated "the 
petitioner has failed to submit any documentary evidence of the criteria used to select recipients of 
[the award," and found that the petitioner's other claimed honors do not appear to 
have anything to do with the practice oflaw. 
The director quoted Matter of New York State Dept. of Transportation regarding pro bono legal 
services, and stated that the petitioner had not shown how his involvement in partisan fundraising 
activities lent national scope to his private law practice. 
In response, the petitioner claime~d" that the director did not recognize the 
significance of the letter sent under __ signature. The petitioner stated: "The letter 
says that 'Due to your tireless efforts, we've been able to make so much progress here in 
Washington to keep our citizens safe, our economy prosperous and our families free .... ' That is 
surely more than a thank you letter for co-sponsoring a dinner." The petitioner failed to specify the 
"tireless efforts" in question. It remains that the letter specifically thanked the petitioner "for 
agreeing to serve as a National Co-Sponsor of The President's Dinner"; it did not identify any other 
contribution or activity by the petitioner. 
The petitioner stated that he received the Award because he "devoted over 100 
hours to pro bono legal service." The petitioner did not submit documentary evidence to support this 
claim. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSofjici, 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)). 
Regarding his various certificates from_ the petitioner stated: _ never asked me 
for money before giving me those awards. Simply put, I did not buy any of those awards. I 
respectfully ask you to verify this assertion by calling_ The director is under no obligation 
to seek out, solicit, or obtain evidence on the petition~lf. The petitioner submitted nothing 
Page 7 
from_to support his claims, and his demand that uscrs get the evidence for him carries 
no weight in his favor. 
Regarding the claim that the petitioner "was invited as an expert lawyer to represent California at the 
tax Summit," the petitioner asserted: "Under California Evidence Code and Federal Rules of 
Evidence, an attorney may qualify as an expert to testifY on any area of law." The "tax Summit" 
was not a trial or legal proceeding. It was, instead, an event sponsored by an _affiliated 
organization. It may well be that the petitioner may lawfully testify about matters of law, but this is 
irrelevant to the petitioner's claim that the United States government called on the petitioner to offer 
advice as a representative of the State of California. 
The petitioner's response to the director's notice consisted largely of a series of unsubstantiated 
claims. He claimed, for instance: "My successive invitation to Washington D.C. on four separate 
occasions ... means that the then Republican-controlled White house recognized my influence in the 
field" (emphasis in original). Nothing in the record supports this claim. 
The petitioner then argued that "NYDOT appears to be a bad law," even while acknowledging that 
the director was "bound to apply the NYDOT to this case." The petitioner contended: "r do not 
think that [the third prong of the Matter of New York State Dept. of Transportation national interest 
test] can survive judicial scrutiny." 
Matter of New York State Dept. of Transportation is a published precedent decision, and (as the 
petitioner acknowledges) is therefore binding on all uscrs officers pursuant to 8 C.F.R. § 103.3(c). 
Moreover, contrary to the petitioner's prediction that the decision cannot "survive judicial scrutiny," 
it has, in fact, survived federal court challenges without being overturned. See e.g. Talwar v. Us. 
IN.S., 2001 WL 767018, S.D.N.Y., 2001. 
The petitioner asserts that "an alien can qualify as an alien of exceptional ability ... without meeting 
the second prong of the NYDOT formulae." This is true but irrelevant. It is clear, from the plain 
wording of the statute, that "exceptional ability" is not automatic grounds for a national interest 
waiver. Rather, section 203(b)(2)(A) refers to aliens of "exceptional ability ... whose services ... 
are sought by an employer in the United States." An alien of exceptional ability is, therefore, subject 
to the job offer requirement unless the petitioner can show that an exemption would be in the 
national interest. 
The director denied the 2010, having found the petitioner's claims to be 
exaggerated and unsupported. On appeal, the petitioner that "clearly ignored" 
the petitioner's invitation "by the personal assistants to Washington D.C. 
on four successive occasions where issues of national interests were discussed." The director did not 
"ignore" this claim, but the petitioner has submitted nothing of any substance to prove that the 
evidence of record has the significance that the petitioner claims it has. The petitioner has not 
submitted anything fro~ or any other entity to state the reason(s) for these invitations. 
The petitioner maintains that the invitations have nothing to do with fundraising, but he has not 
Page 8 
provided any other plausible and documented explanation. Instead, the petitioner complains that the 
director has not sought out and obtained evidence to support his claims. The burden of proof in these 
proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Therefore, the 
onus is entirely on the petitioner to show that he qualifies for the benefit sought. There is no 
presumption of eligibility that the director must overcome in order to justifY denying the petition. 
Rather, the petitioner must justifY the approval of the petition. 
The petitioner repeats several of the arguments against Matter of New York State Dept. of 
Transportation, even in the face of the director's correct observation that all precedent decisions are 
binding on all USCIS employees. At one point, the petitioner argues: 
Another flaw of NYDOT is clearly seen in cases involving physicians. Everyone 
knows that someone saving lives serves the national interest. Before the NYDOT 
case, the USCIS routinely granted the waiver to Physicians. However, after NYDOT 
case, the USCIS often deny [sic 1 National Interest Waiver (NIV) [sic 1 to physicians 
because of the way the AAO has interpreted the phrase "national interest" in the 
NYDOT case since each physician's activity is geographically localized. Congress 
recognized the problem AAO has caused physicians by its decision in NYDOT's case 
and have passed a new law which does not require any physician to show that he/she 
is the best in the field of medicine in order to qualify for a "national interest waiver" 
of a job offer. See INA 203(b)(2)(B), Public Law 106-95 § 5 permitting NIW for 
physicians in shortage areas. 
Leaving aside oversimplifications and inaccuracies in the above account that are outside the purview 
of the present decision, the petitioner is correct that Congress acted in direct response to the Matter 
of New York State Dept. of Transportation precedent decision. Congress, at that time, could have 
issued any number oflegislative remedies; it was Congress that created the waiver, and Congress has 
the authority to shape that waiver as it sees fit. Significantly, Congress did not take broad action to 
nullify or reverse Matter of New York State Dept. of Transportation. Instead, Congress crafted a 
narrow exception - not for all physicians, but for certain physicians practicing in medically 
underserved areas. With this specified exception, Congress left Matter of New York State Dept. of 
"Transportation alone. In so doing, Congress effectively (if passively) endorsed the precedent 
decision. Cj Lorillard v. Pons, 434 U.S. 575, 580 (1978) (Congress is presumed to be aware of an 
administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a 
statute without change.) 
The petitioner protests: "I am told by the Director to look for a job and have my employer file a labor 
certification for me when no one is hiring. In fact, lawyers are being laid off by big law firms." The 
petitioner submits no evidence to support this claim, but assuming it is true, the AAO reiterates that 
Congress intended the job offer requirement to protect United States workers. The petitioner asserts 
that he merits a special exemption to bypass these protections. There exists no blanket waiver for 
attorneys. The petitioner must show that he, specifically, will serve the national interest to an extent 
that would justify this exemption. The petitioner has submitted no relevant documentation in this 
Page 9 
regard. Instead, he has focused on evidence from partisan campaign organizations, and claimed (with 
no proof) that these organizations have paid special attention to him not because of political 
contributions, but because of his achievements in the field. What those achievements are, the 
petitioner does not say, except that he has performed pro bono work (specifically addressed in Matter 
of New York State Dept. of Transportation) and the vague (and again unsupported) claim that only a 
very good attorney could have handled as many cases as he has. 
Several months after he filed the appeal, 2010 the petitioner submitted a supplement 
to the appeal. The new evidence shows that the petitioner has "complied with all applicable 
requirements for certification in consumer bankruptcy law" by the American Board of Certification. 
The petitioner asserts: "My certification clearly shows my degree of influence in the field of law." The 
petitioner fails to explain how this is the case, as nothing in the record shows that "influence in the 
field of law" is a requirement for certification. Rather, the requirements include experience, 
continuing legal education, and a written examination. 
The beneficiary received this certification in December 2010. Therefore, even if it were strong 
evidence in favor of granting the waiver (which it is not), it came along more than a year after the 
petitioner filed the petition. 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)(1). Therefore, 
subsequent events cannot cause a previously ineligible alien to become eligible after the filing date. 
See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The record amply shows that the petitioner has made contributions to 
political organizations. For example, a July 30, 2007 letter from 
chairman of the thanked the petitioner for his "generous donation, and [his 1 continued 
. dedication to regaining our Republican majority in Congress." A legend at the bottom _ 
_ letter states: "Contributions from ... foreign nationals are prohibited." 
The "Foreign Nationals" brochure from the Federal Election Commission (FEC) states: "The Federal 
Election Campaign Act (FECA) prohibits any foreign national from contributing, donating or 
spending funds in connection with any federal, state, or local election in the United States, either 
directly or indirectly .... Persons who knowingly and willfully engage in these activities may be 
subject to fines and/or imprisonment." The "Foreign Nationals" brochure is available online at 
http://www.fec.gov/pages/brochures/foreign.shtml (printout added to the record July 6, 2011). The 
relevant statutory language at 2 U.S.C. § 441e reads: 
Contributions and donations by foreign nationals 
(a) Prohibition. It shall be unlawful for-
(1) a foreign national, directly or indirectly, to make-
(A) a contribution or donation of money or other thing of value, or to 
make an express or implied promise to make a contribution or 
donation, in connection with a Federal, State, or local election; 
(B) a contribution or donation to a committee of a political party; or 
Page 10 
(C) an expenditure, independent expenditure, or disbursement for an 
electioneering communication (within the meaning of section 
304(1)(3)) (2 U.S.c. § 434(1)(3)); or 
(2) a person to solicit, accept, or receive a contribution or donation described 
in subparagraph (A) or (8) of paragraph (1) from a foreign national. 
(b) As used in this section, the term "foreign national" means-
(1) a foreign principal, as such term is defined by section 61 I (b) of title 22,2 
except that the term "foreign national" shall not include any individual who is 
a citizen of the United States; or 
(2) an individual who is not a citizen of the United States or a national of the 
United States (as defined in section 101(a)(22) of the Immigration and 
Nationality Act) and who is not lawfully admitted for permanent residence, as 
defined by section 1101(a)(20) of title 8. 
The AAO cannot rule definitively on whether or not the petitioner violated federal election law by 
making contributions to partisan political campaigns. Jurisdiction over that issue rests with the FEC. 
Nevertheless, by prohibiting and criminalizing political contributions from foreign nationals, 
Congress has effectively declared such contributions to be against the national interest. Therefore, if 
the petitioner's contributions were in violation of federal law (as appears to be the case), then this 
violation would contradict the argument that the petitioner acted in the national interest by making 
the contributions. 
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. 
ORDER: The appeal is dismissed.