dismissed EB-2 NIW Case: Law

PUBLIC COpy
identifyingdata deleted to
prevent clearly unwarranted
invasion ofpersonalprivacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 06 096 52611 Office: NEBRASKA SERVICE CENTER Date: JUL 11 2001
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:
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.
JelflUJltL().£ifi{i/fder Robert P. Wiemann, Chief
-tV Administrative Appeals Office
www.uscis.gov
LIN 0609652611
Page 2
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. § 1153(b)(2), as a member of the professions holding an advanced degree. The
petitioner seeks employment as a lawyer. 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 the classification sought, 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 reiterates previous assertions. We uphold the director's basis of denial.
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 Juris Doctor from the University of Wisconsin Law School. 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 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
LIN 06 096 52611
Page 3
increasing the number and proportion of visas for immigrants who would benefit the United States
economically and otherwise.... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (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 "exceptiona1."] 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 Dep't. of Transp., 22 I&N Dec. 215 (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 onprospective 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, law. The director
then concluded that the proposed benefits of the petitioner's work, assisting Korean clients in the
Wisconsin area, including business clients involved in exporting, would not be national in scope. On
appeal, the petitioner asserts that his private law practice has had an impact beyond Wisconsin. He
notes that he represents clients in bankruptcy proceedings administered by federal courts using
federal law. He also notes that he has represented business clients involved in interstate and
international commerce. He further asserts that his clients buying and selling real estate impact
interstate commerce and are subject to federal regulation. Finally, he asserts that his practice as the
only Korean-speaking attorney in the Milwaukee legal community has made the area more desirable
for Korean migration and business development.
This office has explicitly stated that while pro bono legal services as a whole serve the national
interest, the impact of an individual attorney working pro bono would be so attenuated at the national
level as to be negligible. Matter ofNew York State Dep't of Transp., 22 I&N Dec. at 217, n.3. We
LIN 06 096 52611
Page 4
find this reasoning applicable to most private practice lawyers who are not otherwise influencing the
field of law at the national level. The fact that the petitioner's area of practice involves federally
regulated areas such as bankruptcy and real estate is insufficient. Like the pro bono attorney, the
impact of an individual bankruptcy, real estate or federal tax lawyer (also federally regulated) at the
national level is negligible. The record contains no evidence that the petitioner proposes to author
articles in law reviews or other trade journals or otherwise impact the practice of bankruptcy or real
estate law at the national level.
The fact that the beneficiary happens to originate from Korea and, thus, speaks Korean, is not
evidence that he has made or will make an impact on the field of law other than to benefit his
specific clients. While benefiting individual clients has intrinsic merit, the impact is not national in
scope, as discussed above. If Citizenship and Immigration Services (CIS) were to accept that the
beneficiary's bilingual ability warrants approval of the waiver, CIS would need to approve the
waiver for every alien from a non-English speaking country with a degree in a profession that
provides services to the public (social workers, therapists, doctors, psychologists, etc.) The
petitioner has not established that Congress intended the national interest waiver to serve as a blanket
waiver for all bilingual aliens providing services to the public. While we recognize that the
petitioner is self-employed and, thus, that the alien employment certification process is not
applicable, it remains that we do not have jurisdiction over shortage issues,' including whether there
is a shortage of Korean-speaking attorneys in Milwaukee. Moreover, the petitioner has not
satisfactorily established that a Milwaukee shortage is a national issue.
Even if we accepted that the proposed benefits of the petitioner's practice would be national in
scope, the petitioner must still establish that he will benefit the national interest to a greater extent
than an available U.S. worker with the same minimum qualifications. The director concluded that
simply demonstrating that there is a lack of attorneys with the same skill, fluency in Korean, was
insufficient as the issue of a shortage of workers with specific skills falls under the jurisdiction of the
Department of Labor. On appeal, the petitioner reiterates that he is self-employed and, thus, cannot
utilize the alien employment certification process. He concludes that if the waiver is not approved,
"the Milwaukee metropolitan area could again be without a Korean speaking attorney. This would
result in a major metropolitan area (1.68 million individuals) being without the services of an
attorney who is fluent in both Korean and English."
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 ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a ''unique background." Special or unusual knowledge or
training, such as being bilingual, 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
1 Matter ofNew York State Dep't. of Transp., 22 I&N Dec. at 221.
LIN 0609652611
PageS
jurisdiction of the Department of Labor. ld. at 221. We emphasize that the inapplicability or
unavailability of the alien employment certification process for self-employed aliens 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. ld. at 218, n. 5.
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. ld. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. ld. at 221, n. 7.
The petitioner has asserted that his firm is steadily growing and expanding. The fact that the petitioner
is able to make a living in his field is not evidence of a track record of success with some degree of
influence on the field as a whole. The record lacks evidence that the petitioner has authored influential
articles in law reviews, other trade journals or treatises or other evidence of his impact in the field, such
as letters from lawyers nationwide who have been influenced by him.
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. § 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 an alien employment certification certified by the Department of Labor, appropriate
supporting evidence and fee.
ORDER: The appeal is dismissed.