dismissed EB-2 NIW Case: Law

(b)(6)
DATE: 
MAY 1 0 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
FILE: 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~on Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The 
Administrative Appeals Office (AAO) rejected the petitioner's appeal as untimely and returned the 
petition to the director for consideration as a motion to reopen and reconsider. The director denied the 
motion. The petitioner then filed a second appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under 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 em loyment as an international legal consultant at a real estate 
investment firm in New York. 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 and copies of previously submitted exhibits. 
The petitioner filed the Form 1-140 petition on her own behalf on May 3, 2009. The director denied the 
petition on September 29, 2009. In the denial notice, the director stated: "The appeal may not be filed 
directly with the Administrative Appeals Office." The director specified the proper address to file an 
appeal. Nevertheless, the petitioner attempted to file an appeal directly with the AAO on October 29, 
2009. The AAO could not, and did not, accept that appeal. The petitioner refilled the appeal at the 
correct address on November 12, 2009, with a note, dated November 5, 2009, in which the petitioner 
acknowledged the misfiling of the appeal "contrary to [the director's] instructions." 
On February 12, 2012, the AAO rejected the appeal as untimely under the U.S. Citizenship and 
Immigration Services (USCIS) regulation at 8 C.P.R. § l03.3(a)(2)(i). The AAO instructed the director 
to determine whether the untimely appeal met the requirements of a motion to reopen or a motion to 
reconsider, under the USCIS regulation at 8 C.P.R.§ 103.3(a)(2)(v)(B)(2). The director determined that 
the untimely appeal did not meet those requirements, and therefore did not qualify for consideration as a 
motion. The director issued a decision denying the motion on April 25, 2012. 
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. 
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(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, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, 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. 
In reNew York State Dept. of Transportation (NYSDOT), 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, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 intention behind the term "prospective" is 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 USCIS 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, 
(b)(6)
Page4 
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 initial petition electronically. Electronic filings, by nature, do not include any 
supporting evidence. The confirmation notice, generated automatically upon the electronic filing of the 
petition on May 3, 2009, instructed the petitioner to "[s]end supporting documentation to [a specified] 
address." On June 9, 2009, having received nothing further from the petitioner, the director instructed 
the petitioner to submit documentation to support her petition and establish "that the exemption would 
be in the national interest." The petitioner's response to the director's notice included documentation of 
her advanced degrees and her legal credentials, establishing that the petitioner is a member of the 
professions holding an advanced degree as the USCIS regulations at 8 C.F.R. § 204.5(k)(2) define those 
terms. 
The petitioner observed that her employer filed its own Form I-140 petition on her behalf on June 29, 
2007, with an approved labor certification. If approved, the petition would convey a priority date of 
April 30, 2001. The director denied the petition, as well as a series of motions filed by the employer. 
USCIS records indicate that the director ultimately reopened the petition on December 23, 2009, and 
that the petition remains open. That petition is not before the AAO on appeal or motion. 
The petitioner asked the director to take the approved labor certification into account in the present 
proceeding. By statute, the threshold for the waiver is that it will serve the national interest. There is no 
provision in the statute, regulations, or case law for an approved labor certification to qualify the 
petitioner for a waiver of the job offer requirement in a separate proceeding. The labor certification is 
only one element of the statutory job offer requirement; the denial of the employer's petition rested on 
the employer's claimed failure to meet another element of the job offer requirement. To approve the 
present petition based on the labor certification would amount to a waiver of the remaining elements of 
the job offer requirement, and the petitioner must stiJl show that such a waiver is in the national interest. 
The approval of a labor certification does not, by itself, require USCIS to approve a petition based on 
that labor certification, much less waive the job offer requirement outright for a different petition. As 
noted previously, the employer's petition remains pending, and it is proper to consider the approved 
labor certification in the context of that petition, but the approved labor certification is not relevant to 
the matter now at hand. That approval does not demonstrate or imply that it would serve the national 
interest to waive the job offer requirement in the present proceeding. 
Regarding the merits of her waiver application, the petitioner stated: 
I truly believe that the United States needs someone like me because I can help 
American Investors in Turkey, I can protect their interests and I can help Turkish 
investors in here. I am a lawyer here and there. I am already helping my employer's 
(b)(6)
PageS 
real estate interests in Turkey, already reviewing legal documents in Turkish for one of 
the top law firms in the U.S .... 
I can help so many lawyers, so many companies [and] so many individuals who are 
dealing with a Turkish ... entity .... In the same way, I can help Turkish nationals who 
are dealing with their American counterparts .... 
I am a member of International Trade Law Committee of New York City Bar 
Association. I represented New York City Bar Association in United Nations, 
UNCITRAL Public Procurement Law discussions. I have worked in Turkey with one of 
the top law firms on Turkish Banking and Trade Law. 
The petitioner documented her credentials as an attorney, including academic records and certification 
of her admission to the New York bar. The petitioner also submitted documentation regarding the 
earlier approval of H-1B nonimmigrant visa petitions on her behalf. 
The petitioner's former law school professors and past and present employers praised her work and 
abilities in general terms, but the letters predate the petitioner's application for the waiver, and they do 
not address issues related to the waiver. In identical letters respectively dated June 7 and 23, 2005, 
, president of stated that the petitioner "will continue to be a valuable member 
of our Company and we expect that her contribution will be critical to the continued growth of our 
Company." Mr. did not indicate that the benefits from the petitioner's work would extend 
beyond and its clients. 
The petitioner asserted that Exhibit 17 of her submission showed evidence of recognition for 
achievements and significant contributions to the industry or field by peers, government entities, or 
professional or business organizations. Such recognition provides partial support to a claim of 
exceptional ability under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F). Although exceptional ability 
does not ensure eligibility for the waiver, such recognition may carry significant weight depending on 
the nature of the recognition and of the achievements and contributions so recognized. The petitioner 
submitted three letters. 
An October 24, 2002 letter from assistant dean of Student Affairs at 
New York, included a check for $250 for the petitioner "as the 
May 2002 recipient of the prize . . . awarded to the graduating student 
in the who attains the highest cumulative 
average." Academic performance, measured by such criteria as grade point average, cannot 
alone satisfy the national interest threshold or assure substantial prospective national benefit. 
NYSDOT, 22 I&N Dec. 219, n.6. Because the sole criterion for the prize is one's grade point 
average, the reasoning in NYSDOT applies here. 
A Se tember 21, 2007 letter 
from chair of the 
reads, in part: "You have been selected by the 
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Page6 
to receive an award in great appreciation for your volunteer 
work with . I hope that you can attend the Reception in honor of our Pro Bono 
Volunteers." The letter does not identify any achievement or contribution beyond pro bono service in a 
local initiative. 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. 
The third letter, dated January 14, 2009, is from general counsel of the New York City 
Bar, and addressed to secretary of the 
. The purpose of the letter was to accept an invitation "to attend the fifteenth 
session of _ _ " The letter identified the three-person delegation, which 
included the petitioner. The record does not reveal how the petitioner came to be selected for the 
working group, and therefore the petitioner has not shown that this selection was a form of recognition 
for achievements or contributions. Even if it were, the record does not identify the achievements or 
contributions so recognized. 
The director denied the petition on September 29, 2009, stating that the duties of a legal consultant do 
not automatically qualify the petitioner for the national interest waiver, and that the petitioner had not 
otherwise established eligibility for the waiver. On appeal from that decision, the petitioner requested 
oral argument. The regulations provide that the requesting party must explain in writing why oral 
argument is necessary. Furthermore, USCIS has the sole authority to grant or deny a request for oral 
argument and will grant argument only in cases involving unique factors or issues of law that cannot be 
adequately addressed in writing. See 8 C.F.R. § 103.3(b ). In this instance, the petitioner identified no 
unique factors or issues of law to be resolved, and no specific reasons why the AAO should grant oral 
argument. Moreover, the written record of proceedings fully represents the facts and issues in this 
matter. Consequently, the AAO denies the petitioner's request for oral argument. 
The petitioner again noted the existence of 's petition, which included an approved labor 
certification. The petitioner asserted that "[t]he labor process was exhausted by a U.S. employer," and 
requested that the AAO ."consider the two petitions together." 
The petitioner cited no statutory or regulatory provision that would allow the consolidation of two 
separate petitions in this way. A further complication is that, while the beneficiary filed the present 
petition on her own behalf, she did not file the other petition; filed it on her behalf, and the 
beneficiary has no standing with respect to that petition. See 8 C.F.R. § 103.3(a)(1)(iii)(B), which states 
that the beneficiary of a visa petition is not an affected party with standing in the proceeding. The 
proceeding to determine the outcome of 's petition is still open, and has no direct effect on the 
present proceeding. 
With respect to the petitioner's assertion that she has "already satisfied the requirement of an approved 
labor certification," the statutory standard for the waiver of the job offer requirement is that the waiver 
must be in the national interest. It cannot suffice that, at some point in the past, the petitioner received a 
(b)(6)
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labor certification in a separate proceeding. That approved labor certification relates to a different (still­
pending) petition, and it does not demonstrate or imply eligibility for the waiver. 
The petitioner stated: 
I believe that after being in this country since 1994 as a law abiding alien, going to 
language schools ... , completing my law master's degree ... , working for U.S. 
employers ... and paying taxes is certainly enough for someone like me to be able to 
stay in this Country. I believe that the decision [to the] contrary would violate the 
fundamental fairness and substantial justice. 
The waiver must serve the national interest. None of the factors identified above establish eligibility for 
the national interest waiver. 
With respect to the NYSDOT guidelines, the petitioner stated: 
[M]y services are so unique that it is unimaginable to think that there would be a U.S. 
worker who will have similar qualifications to mine. 
On the contrary, I will create jobs for U.S. citizens. 
The petitioner has already been working, for several years, in the same capacity for which she seeks the 
national interest waiver. The petitioner did not provide any statistics or documentary evidence to show 
that her work to date has created significant numbers of jobs for United States workers. 
Regarding her background, the petitioner stated: 
I have represented banks, start 
ups and large corporations in Turkey as [a] Commercial 
Litigator!frade Lawyer. ... I can competently mediate between Turkish traders [and] 
their American counterparts .... I understand both cultures very well .... 
I would serve the national interest better [than a qualified United States worker] due to 
my experience in two different worlds .... 
I believe that my origin from a different religious, cultural and educational background 
has served, and will continue to serve the national interest. 
The petitioner's national origin is not, itself, grounds for granting the waiver. NYSDOT calls for a past 
history of demonstrable achievement with some degree of influence on the field as a whole (id. at 219, 
n.6); cross-cultural perspective is not an influential achievement. The petitioner identified no specific 
instances by which her background helped her to achieve beneficial outcomes that would have been 
unobtainable for other attorneys. She offered only the general assertion that her background makes 
such outcomes possible. Going on record without supporting documentary evidence is not sufficient for 
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purposes of meeting the burden of proof in these proceedings. 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)). 
The AAO rejected the petitioner's appeal on February 27, 2012, and the director issued a second denial 
notice on April 25, 2012, stating that the petitioner had failed to submit "evidence about [her] 
accomplishments within [her] field." The petitioner's appeal from that decision includes a brief dated 
May 22, 2012. 
The petitioner asserts that her work in the legal field has substantial intrinsic merit. The director, in the 
2012 denial notice, stated that the petitioner had not met this threshold because "a statement alone 
cannot be determined as evidence that [her] work has substantial extrinsic [sic] merit." The petitioner 
has sufficiently established that legal advice and assistance, provided by a professional with proper 
credentials, has substantial intrinsic merit. 
With respect to national scope, the petitioner asserts that "[a]ll individuals/corporations/organizations in 
every part of the United States would benefit from [her] experience and education." The petitioner, 
however, did not submit evidence to show that her 
intended employment at would involve a 
national rather than local clientele. Because the petitioner has already worked for for several 
years, such evidence should already exist; it is not a matter of speculation. The petitioner has not 
established that her intended work will produce benefits that are national in scope. 
Regarding the third prong of the NYSDOT national interest test, the petitioner states that, with regard to 
"Turkish Commercial Law consultations," "US entities rights will be better protected by being served 
with a person with dual licenses" to practice law in both Turkey and the United States. Even if one 
disregards the possibility that a United States attorney could hold "dual licenses" as the petitioner does, 
possession of professional credentials is not a demonstrable history of influential achievement. 
The petitioner states: 
I have already established that my past record justifies projections of future benefit to the 
national interest. . . . [F]or the past 18 years I have worked . . . for three different 
companies as International Legal Consultant and I am a licensed attorney in New York. 
I have done internal PCP A investigations for US companies for their corporate 
compliance .... I can finally combine all my education and experience into opening my 
own practice and in this process I can employ U.S. workers and/or work on consultation 
basis with U.S. employers who have Turkish counterparts. By the same token, I can 
help Turkish employers intending to do business in the United States, which would also 
benefit the interest of the United States. 
The petitioner has not established that her length of experience and the identities of her employers 
amount to a demonstrable history of influential achievement. The listed facts describe the 
petitioner's employment history but do not show it has been particularly influential. It is significant 
(b)(6)
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that the petitioner, above, asserts that she intends to establish her "own practice and ... employ U.S. 
workers." Elsewhere (as discussed previously), the petitioner 
maintains that USCIS should take her 
approved labor certification under consideration. That labor certification, however, was for a 
specific offer of employment from not for the petitioner to establish her own law 
practice. 
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.