dismissed EB-2 NIW Case: Law

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
EAC 06 045 51928
Office: TEXAS SERVICE CENTER Date: DEC 1 8 2001
INRE :
PETITION:
Petitioner:
Beneficiary:
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.
~
. ,
. ... ~ . '
, ~
~obert P. Wiem , Chief
Administrative Appeals Office
www.uscis.gov
/
,
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office (AAO) 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. Although the petitioner did not
complete Part 60f the Form 1-140 petition, it appears that the petitioner seeks employment as an
intellectual property 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 did not contest that the petitioner qualifies for the classification sought, but concluded 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 submitted a brief. Subsequently, the petitioner submitted evidence that she
has passed the New York State Bar Examination and is now a member of the New York State Bar in
good standing. We note that the petitioner must establish eligibility as of the date of filing. See
8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 1&N Dec. 45,49 (Regl: Commr. 1971). Regardless,
for the reasons discussed below, we concur with the director's finding that the petitioner has not
established that a waiver of the alien employment certification is warranted in the national interest
..Ultimately, the record lacks evidence supporting any of the petitioner's many assertions about her past
work experience. or the required translations for the title pages of the foreign language publications
submitted pursuant to 8 C.F.R. § 103.2(b)(3).
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 ofjob 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 he
sought by an employer in the United States.
The petitioner seeks classification as an alien of exceptional ability : The regulation at 8 C.F .R.
, § 204.5(k)(3)(ii) sets forth six criteria , at least three of which an alien must meet in order to qualify
as an alien of exceptional ability in the sciences , the arts, or business. These criteria follow below.
The regulation at 8 C.F .R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise
significantly above that ordinarily encountered." Therefore, evidence submitted . to establish
, exceptional ability must somehow place the alien above others in the field in order to fulfill the
criteria below; qualifications possessed by every member of a given field cannot demonstrate "a
, degree of expertise significantly above that ordinarily encountered." The petitioner claims to meet
the following criteria .
An official academic record showing that the alien has a degree, diploma, certificate, or similar
award from a college , university, school, or other institution of learning relating to the area of
exceptional ability
Section 203(b)(2)(C) of the Act provides that 'the possession of a degree , diploma, certificate or
similar award from a college, university school or other institution of learning shall not by itself be
considered sufficient evidence of exceptional ability. .Thus, we must determine whether the
petitioner's degree is indicative of or consistent with a degree of expertise significantly above that
ordinarily encountered .
In '1991, the petitioner received a degree in Economic Law from the China University of Political
Science and Law after one and a half years of coursework. In 1995, she received a Master's Degree
of Law from the same institution. The petitioner did not submit a credentials evaluation of this
education. The petitioner submitted a letter from~ssistant Dean for Records and
Registration at the Franklin Pierce Law Center a~e petitioner had "completed all
requirements for a Master of Laws in Intellectual Property, Commerce & Technology on May 15 ,
2004." The petitioner did not submit the official academic record for this final degree as required
under 8 C.F.R. § 204.5(k)(3)(ii)(A). '
Notably, the record contains an October 18 , '2005 letter from the Executive Director
of the New York State Board of Law Examiners finding T at t e petitioner did not meet the
requirements to take the New York State Bar exam set forth in Section 520.6 of the Rules of the
Court of Appeals. Specifically, Mr._oncluded that the petitioner's education in China was
of an insufficient duration and tha t "the substantive equivalent of the legal education
provided by an approved law school in the United States." The petitioner 's 20-credit program at the
Franklin Pierce Law .Center was deemed insufficient to resolve both the durational and substantive
.problems.
The petitioner then requested a waiver of the requirements of section 520.6(b) of the Rules of the
Court of Appeals, explaining her education both in the U.S. and in China and her experience in
China. On March 28 , 2006, the Court of Appeals granted the waiver and permitted the petitioner to
sit for the New York Bar Examination in July 2006 providing she presented proof of her degree from
the Franklin Pierce Law Center.
While the petitioner was ultimately granted a waiver of the education requirements for the New York
State Bar Examination, it remains that her education was not deemed equivalent to a U.S. law degree
in either duration or substance. Thus, we cannot conclude that her education is indicative of a degree
of expertise above that ordinarily encountered in the field oflaw in the United States.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence 'in the form ofletter(s) from current or former employer(s) showing that the alien has at
. least ten years offull-time experience in the occupation for which he or she is being sought
The petitioner did not submit letters from her current or former employers documenting her
employment for the Chinese State Administration for Industry and Commerce or the law firms for
which she claims to have worked as a legal assistant in the United States. 8 C.F.R.
§ 204.5(k)(3)(ii)(B); 8 C.F.R. § 204.5(g)(l). The petitioner's self-serving statements and curriculum
vitae are insufficient. Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Regl. Commr. 1972)).
The petitioner did submit a Household Book confirming that she worked as an "official" for the
Chinese State Administration' for Industry and Commerce. 'This document, however, does not
confirm at least 10 years of employment in this position.
Finally, even if we accepted the petitioner's claim on her curriculum vitae to have worked as a
trademark examiner for the Chinese State Administration for Industry and Commerce and a legal
assistant for two U.S. law firms, the petitioner seeks to work in the United States as a lawyer. The
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires at least 10 years of experience in the occupation
of proposed employment. The record is absent evidence that the petitioner has ever practiced law.
In light of the above, the petitioner has not established that she meets this criterion.
A license to practice the profession or certification for a particular profession or occupation
Section 203(b)(2)(C) of the Act provides that the possession of a license to practice or certification
for a particular profession or occupation shall not by itself be considered sufficient evidence of
exceptional ability. Thus, we must determine whether the petitioner's license is indicative of or
consistent with a degree of expertise significantly above that ordinarily encountered.
Membership in a state bar is required for the practice of law. Thus, possession of bar membership is
not evidence of a degree of expertise significantly above that ordinarily encountered in the field of
law. Regardless, the petitioner was not a member of the bar as of the date of filing, the date on
Page5
which she must establish her eligibility. See 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14I&N
Dec. at 49.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence that the alien has commanded a salary, or other remuneration for services, which
demonstrates exceptional ability
The record is absent evidence relating to this criterion.
Evidence ofmembership in professional associations
The petitioner claims to meet this criterion through her alleged employment for the Trademark
Review and Adjudication Board (TRAB),an appellate entity that reviewed decisions made by the
Chinese Trademark Office. First, the record lacks evidence of the petitioner's employment for
TRAB or her duties for the Chinese State Administration for Industry and Commerce. As stated
above, the petitioner's self-serving statements are insufficient. 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. at 165 (citing Matter of Treasure Craft of California,
14 I&N Dec. at 190). Regardless, employment is not a membership in a professional association.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence ofrecognition for achievements and significant contributions to the industry or field by
peers, governmental entities, or professional or business organizations
The petitioner asserts that her recognition as a "competent official" at TRAB and her selection for an
International Visitor visa in 2002 and 2003 serve to meet this criterion. The record contains no
evidence of any formal recognition from TRAB. As stated above, 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. at 165 (citing Matter of Treasure Craft of
California, 14 I&N Dec. at 190). The record 'does contain letters from the U.S. Embassy in China
inviting the petitioner to participate in the International Visitor program. According to the letter
fro_of the U.S. Embassy, the program "provides an opportunity to exchange
ideas with professional counterparts on issues of common interest, as well as to observe the diversity
of the United States and to meet Americans from various walks oflife." While the internet materials
provided .reveal that heads of state, cabinet level ministers and other distinguished work leaders in
government and the private sector have participated in the program, the information does not suggest
that the program is limited to those who have demonstrated achievements or significant contributions
to their field.
In light of the above, the petitioner has not demonstrated that she meets this criterion.
As the petitioner has not demonstrated that she meets any of the above criteria, she has not
established that she qualifies as an alien of exceptional ability as defined at 8 C.F.R. § 204.5(k)(2).
An alien may also qualify for a national interest waiver, however, as a member of the professions
holding an advanced degree: Even if we considered the petitioner's alleged degree from the Franklin
Pierce Law Center as evidence that the petitioner holds an advanced degree, she was not a member
of the professions as of the date of filing. Specifically, we acknowledge that lawyers are members of
a profession. That profession, however, requires bar membership. The petitioner was not a member
of the bar as of the date of filing, the date as of which she must establish her eligibility. See 8 C.F.R.
§ 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. at 49.
As the petitioner has not demonstrated that she is an alien of exceptional ability or that she was a
member of the professions holding an advanced degree as of the date of filing, the issue of whether
waiving the job offer requirement is in the national interest is moot. Nevertheless, we will address
this issue as it was the sole basis of the director's decision.
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress
did not provide a specific definition of the phrase, "in the national interest." The Committee on the
Judiciary merely noted in its report to the Senate that the cominittee 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, 101stCong., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states, in pertinent part:
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.
On appeal, the petitioner references a non-precedent decision by this office. While 8 C.F.R. § 103.3(c)
provides that AAO precedent decisions are binding on all CIS employees in the administration of the
Act, unpublished decisions are not similarly binding: The AAO has issued a precedent decision
relating to the benefit sought, which is binding in this matter. Specifically, Matter ofNew York State
Dep't. of Transp., 22 I&N Dec. 215, 217-18 (Commr. 1998)(hereinafter "NYSDOT"), has setforth
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. Id. at
217. Next, it must be shown that the proposed benefit will be national in scope. Id. Finally, the
petitioner seeking the waiver must establish that the alien will serve the national interest to a
Page 7
substantially greater degree than would an available u.s. worker having the same minimum
qualifications. Id. at 217-18.
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. !d. at 219. 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. !d.
We concur with the director that the petitioner works in an area of intrinsic merit, intellectual
property law. The director did not contest that the proposed benefits of her work would be national
in scope. We are not persuaded, however, that the effect of one lawyer at a single law firm
practicing intellectual property law for individual clients would have more than a negligible effect at
the national level. For example, 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. !d. at 217 n.3. The petitioner's assertion that she is publishing information on
intellectual property law for use nationally in the United States (and thus in English) is unsupported
in the record.
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. The petitioner initially
referenced a letter from her law school rofessor and a letter from a.former fellow employee at the
Professor asserts that the petitioner is knowledgeable
a ou mese ra emar law and has authored "several articles" on the subject. He concludes that
she will promote economic growth in the United States. He requests a waiver of the job offer
requirement so that the petitioner can study for the bar examination. Mr_provides similar
information. We concur with the director that none of these grounds warrant a waiver of the alien
employment certification in the national interest. 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.
On appeal, the petitioner purports to know of unskilled workers who have received the benefit
sought and even classification as an alien of extraordinary ability pursuant to section 203(b)(1)(A) of
the Act, 8 U.S.c. § 1153'(b)(1)(A). The petitioner also references difficulties with her current
employer. Atissue in this proceeding is only the petitioner's eligibility for the benefit sought.
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. Id. at
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique
Page 8
background." Id. at 221. 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 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 element 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. 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. Id. at 221, n. 7.
In response to the director's request. for additional evidence and again on appeal, the petitioner
asserts at length that she has made significant contributions to intellectual property law in. China.
Once again, 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. at 165 (citing
Matter of Treasure Craft of California, 14 I&N Dec. at 190). Thus, we cannot consider any claims
that are not supported by primary evidence or, in appropriate cases, secondary evidence or affidavits.
See 8 C.F.R. § 103.2(b)(2).
As stated above, the petitioner has not documented her employment duties and accomplishments in
China with letters from her employer there. We reiterate that the appropriate evidence of experience
consists of letters from current or former employers. 8 C.F.R. § 204.5(g)(1). None of the three
references who support the petition appear to have any first-hand knowledge of the petitioner's
employment in China.
In response to the director's request for additional evidence, the petitioner asserts that her decisions on
individual trademark cases in China had an impact on the legal field akin to Supreme Court decisions in
the United States but that they are unavailable because the decisions were issued under the name of the
office's deputy head. She further attests to presenting internal reports that led to statutory reform but
are not publicly available. The record, however, lacks evidence that TRAB is an influential body
whose decisions impact trademark law in China.rather than merely interpret existing law. There is
. certainly no evidence that TRAB enjoys the same type of influence as the U.S. Supreme Court which,
as a constitutional court, can strike down laws as unconstitutional rather than simply interpret those
laws.
The petitioner did submit two publications she Claimsto have authored with her coworkers and another
publication for which she claims to have served as deputy editor. The publications are entirely in
Chinese. The regulation at 8 C.F.R. § 103.2(b)(3) requires the submission of translations certified by
the translator for all foreign language documents. While we do not require a translation of the
publications in full, without a translation of the title page or other page crediting the petitioner,' the
petitioner cannot establish her role for these publications,
/
The fact that the petitioner happens to originate from China and, thus, speaks Chinese and is
experienced with Chinese intellectual property law, is not evidence that she has made or will make
an impact on the field of intellectual property law other than to benefit her specific clients. While
benefiting individual clients has intrinsic merit, the impact is not national in scope. Moreover,
experience with Chinese intellectual property law and the ability to speak Chinese are both amenable
to enumeration on an application for alien employment .certification. Thus, they are not grounds for
a waiver of that requirement in the national interest.
Finally, we concur with the director that, in addition to our concern regarding the lack of letters from
the petitioner's employers confirming her work experience and duties, the record also lacks letters from
other trademark law practitioners independent of the petitioner confirming the petitioner's influence on
their own practice. While the petitioner has asserted that the only independent expert she contacted
declined to support the petition, that information is not favorable to the petitioner's claim to have
influenced the field.
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.