dismissed EB-2 NIW Case: Management Consulting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal priv3c" 
PUBLIC 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: JAN 2 3 2012 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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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. § I 153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a freelance management analyst/consultant. 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 failed to show that she qualifies for 
classification as an alien of exceptional ability or as a member of the professions holding an advanced 
degree, or that an exemption from the requirement of a job offer would be in the national interest ofthe 
United States. 
On appeal, the petitioner submits a statement and a supporting exhibit. 
Section 203(b) ofthe 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. 
(8) Waiver oOob 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 first issue under consideration is whether the petitioner qualifies for the classification sought. 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(2) 
includes the fo llowing relevant definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that ofbaccalaureate. A United States baccalaureate 
degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree. If 
Page 3 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
Profession means one of the occupations listed in section 101 (a)(32) of the Act, as 
well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum req uirement for entry into the occupation. 
The uscrs regulation at 8 C.F.R. § 204.5(k)(4) states, in part: 
(i) General. Every petition under this classification must be accompanied by an 
individual labor certification from the Department of Labor. ... The job offer portion 
of the individual labor certification ... must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent or an alien of exceptional 
ability. 
(ii) Exemption from job offer. The director may exempt the requirement of a job 
offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, 
arts, or business if exemption would be in the national interest. To apply for the 
exemption, the petitioner must submit Form ETA-750B, Statement of Qualifications 
of Alien, in duplicate, as well as evidence to support the claim that such exemption 
would be in the national interest. 
The petitioner filed the Form 1-140 petition on September 28, 2009. The petitioner's initial 
submission included documentation of her bachelor's and master's degrees from De La Salle 
University, Manila, Philippines, along with a credential evaluation indicating that the petitioner's 
"studies are equivalent in level and purpose to a Bachelor of Science Degree in Computer Science 
and a Master of Business Administration Degree awarded by regionally accredited colleges and 
universities in the United States." 
The director denied the petition on August 25, 2010, stating: 
uscrs recognizes the petitioner obtained the foreign equivalent to a United States 
advanced degree from De La Salle University, Manila. However, the petitioner has 
not established that an advanced degree is required to perform services as a freelance 
management consultant. It is not enough to simply establish that an alien holds an 
advanced degree; the petitioner must also demonstrate that the proposed employment 
itself requires a professional holding an advanced degree or an alien of exceptional 
ability. In the present case, the petitioner has not established that this burden has 
been met. 
The director then quoted an excerpt from the regulation at 8 C.F.R. § 204.5(k)(4)(i) to support the 
above fmding. 
Page 4 
On appeal, the petitioner submits a photocopy of the "Management Analysts" entry from the 2010-
2011 edition of the Occupational Outlook Handbook, which states: "Many employers in private 
industry generally seek individuals with a master's degree in business administration or a related 
discipline .... Other firms hire workers with a bachelor's degree as research analysts or associates 
and promote them to consultants after several years." 
The AAO finds the director's reliance on the regulation at 8 C.F.R. § 204.5(k)( 4)(i) to be flawed. 
That clause ofthe regulation presumes a job offer and labor certification (or a specified alternative). 
In this instance, the petitioner seeks an exemption from the job offer requirement. Therefore, there 
is no approved labor certification, and thus no job offer portion of the labor certification. 
In the absence of a specific job offer, it is not possible to demonstrate that the job offer requires an 
advanced degree or exceptional ability. In such circumstances, the regulation at 8 C.F.R. 
§ 204.5(k)(4)(i) cannot, and therefore does not, apply. The petitioner is, however, still subject to the 
regulatory definition of a "profession" because the plain language of the statute refers to "members 
of the professions holding advanced degrees," rather than merely "aliens holding advanced degrees." 
The petitioner's evidence is consistent with a finding that her occupation is a profession (requiring at 
least a bachelor's degree for entry into the occupation). The director did not contest that the 
petitioner holds an advanced degree. Therefore, the record establishes that the petitioner is a 
member of the professions holding an advanced degree. The AAO will withdraw the director's 
fmding to the contrary. 
The second and final issue in this proceeding is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
As quoted previously, the USCIS regulation at 8 C.F.R. § 204.5(k)( 4)(ii) states: "To apply for the 
exemption, the petitioner must submit Fonn ETA-750B, Statement of Qualifications of Alien, in 
duplicate." The Fonn ETA-750B is now obsolete; parts J, K and L of the successor Fonn ETA-9089 
fulfill the same function. The petitioner did not submit any of these required forms, and therefore 
did not properly apply for the waiver. Nevertheless, the director did not base the denial of the 
petition on this omission. The AAO will consider the merits of the petitioner's claim, rather than 
leave it at a finding that the petitioner did not properly apply for the national interest waiver. 
Neither the statute nor the pertinent regulations defme 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 inunigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, IOlst 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: 
Page 5 
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. 
Matter a/New York State Dept. a/Transportation (NYSD01), 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 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. 
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 ofthe 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. 
In a statement accompanying the initial filing, the petitioner explained why she sought the waiver: 
As the country struggles to recover from this deep economic recession ... , many 
displaced workers find themselves unprepared for what could be the best option for 
them right now - starting their own business .... 
With hopes dimmed by the prospects of a weak economy, first-time entrepreneurs are 
not confident enough to start their own business especially without any formal 
background and training in business management. My role as a small business coach 
helps fill in the gap to jumpstart the process reducing the time it takes to obtain 
business knowledge and skills necessary to start and manage a business. I have been 
writing articles which promote entrepreneurship, sound management principles and 
business ethics .... Compared to my peers who may have the same educational 
Page 6 
background, I have the ability to articulate and impart my knowledge with fluency 
and effectiveness which is vital to my role as business coach and mentor. 
Although I have made significant contributions to companies I have been employed 
with and will continue to [do] so with every opportunity, being a freelance 
management consultant has allowed me to explore limitless possibilities in 
developing my skills in order [to] reach a broader market sector. Therefore, 
continuing my practice here will not deprive US workers of any work opportunity but 
will, in fact, help them create more opportunities for themselves and for other 
individuals and businesses as I actively promote entrepreneurship. My exceptional 
ability, business skills, know ledge and experience are not only necessary but very 
critical to serving the national interest of the United States in building its economy in 
the shortest possible time. 
There exists no blanket waiver for management analysts/consultants. Simply working in that field is 
not sufficient to quality the petitioner for the national interest waiver. The statement quoted above 
indicates that the petitioner believes her skills to be superior to those of many others in her field. 
The petitioner's own claims, however, cannot establish eligibility for the waiver. NYSDOT requires 
"a past history of demonstrable achievement with some degree of influence on the field as a whole . 
. .. In all cases the petitioner must demonstrate specific prior achievements which establish the 
alien's ability to benefit the national interest." Id. at 219 n.6. 
n"lliti,~n'" submitted several witness letters. 
stated: 
I have known [the petitioner's] work through a major publication widely circulated 
within the community. Her articles deal with issues which are relevant to our 
organization's mission. She is one of few Filipino business writers who can discuss 
both academic and practical views on entrepreneurship and business management. 
[The petitioner's] special feature article describing the fmancial crisis in layman's 
language has helped many, who [had] been looking for a simple explanation of the 
intricacies of the economic downturn leading to the global recession. Her skillful 
presentation of her understanding of economics and business management further 
authenticates her outstanding abilities. 
did not identity the "major publication," "the community" that the petitioner serves, 
or any example of a business that owes its success to the petitioner's help. Other materials in the 
record (including the next letter, discussed below) indicate that the "major publication" is the FilAm 
Star, "the newspaper for Filipinos in mainstream America," headquartered in San Francisco, 
California, and that "the community" is the Filipino-American community. 
editor-in-chiefofthe FilAm Star, stated: 
Page 7 
[The petitioner's] articles published by our newspaper, FilAm Star, have greatly 
helped our readers gain a more structured yet practical view ofbu~ 
of those who have been following her regular column, __ 
have expressed their appreciation for the author's valuable 
insights and practical suggestions as she responds to their inquiries about their own 
business problems. 
The addition of her column to our roster ... has significantly broadened our 
readership. . . . Our editorial staff has also benefited from her strategic perspective 
when discussing changes in business plans and directions. 
Overall, [the petitioner's] work has been used by many entrepreneurs in the field who 
have been in business for quite a while and also by those who are just contemplating 
starting on their own. Most of her colleagues have expressed admiration for her work 
which significantly focuses on basic management principles, professional skills and 
attitude at the workplace. 
It is not self-evident that a newspaper editor would have first-hand knowledge that the petitioner's 
"work has been used by many entrepreneurs"; the editor did not cite any evidence to support that 
conclusion. The petitioner submitted no statistical evidence to show that have 
had more entrepreneurial success than other current or aspiring business owners. 
stated: 
I personally know [the petitioner] who has proven herself with [the] distinctive 
advantage of having extensive knowledge and background in both fields of 
information technology and business management. 
In fact, [the petitioner] remarkably influenced several university professors of the De 
La Salle University to pursue her same passion for promoting the widespread use of 
information technology in business management by establishing 
__ a management consulting firm aimed at management 
~minars that are geared towards improving the understanding and 
skills of managers in the use oftechnology as planning and decision making tools. 
The_ conducted IT and management consulting projects with major companies in 
different industries such as banking, insurance, telecommunications, schoo Is and 
government agencies. In fact, I was once a client of[the petitioner] in 1996 when I 
was 
_ did not explain how he had personal knowledge o~oner's influence on "several 
university professors of the De La Salle University." While_ identified himself as one of 
Page 8 
the petitioner's former clients, he did not claim to be an entrepreneur who started his own business. 
Rather, he was an executive at a bank that he did not claim to have founded. 
The next two initial witnesses nrn,v," the most detail about the petitioner's efforts with specific 
, senior manager of the account management office at Meraleo, employers. 
Pasig City, Phiilippines, 
[The petitioner's] effort in promoting the use of information technology for 
in business and operations has benefited our company's 
significalGt changes she introduced in the administration of the 
and also through her brainchild, the_ 
the 40-page company magazine publication on business management and 
injD!I~tiQ~ technology which evolved from being a 4-page Info Center newsletter. 
she has published editorials and articles which influenced 
recmgfr!i:ermg management team for the 
Her most significant contribution was the introduction of the strategic component in 
the corporate planning process of the company. Before the adoption of her Strategic 
Planning Framework, the annual corporate planning process focused mainly on 
operational performance measures as corporate indicators. With the revised corporate 
planning process,~top management was able to adopt a broader perspective 
in facing mounting challenges posed by political and economic changes in the 
business environment. 
[The petitioner] is highly recommended for her expertise in Information Technology 
and business. She is a team player and would make a great asset to any organization. 
purchasing department head at 
strategic management and information technology through her team's contribution to 
improving the company's systems and procedures in several functional areas such as 
finance and accounting, human resources, manufacturing plant operations, and 
marketing. 
[The petitioner] proposed and implemented a management development program 
which provided formal training to all management levels of affiliates, business 
partners and suppliers within the group. This program has also helped establish a 
formal organization structure and reporting system which has effectively delegated 
operational decision making to functional managers. 
Page 9 
Her most significant contribution was the introduction of a formal corporate planning 
process she has formulated and submitted as her graduate studies thesis paper. With 
the adoption of this planning framework, decision making has been decentralized 
which greatly reduced the time it takes to implement critical problem solutions. 
While some of the above witnesses attested to the petitioner's contributions while she was a full­
time employee of a specific business, none of them indicated that the petitioner had earned a track 
record as an especially successful advisor to budding entrepreneurs. Because the petitioner herself 
based her waiver claim on her intended work with such entrepreneurs, the omission is significant. 
The petitioner submits copies of several articles she wrote for the 
submitted two copies 0 f the single-sheet newsletter 
business advice with no author identified. Even pre:sUlninlg 
petitioner also 
author of the 
unattributed articles, the submission establishes only the existence of the articles, not their influence. 
The latter publication is clearly local, aimed at _ The record contains no circulation data 
forthe_. 
On December 8, 2009, the director issued a request for evidence (RFE), instructing the petitioner to 
submit evidence to establish the national scope and influence of her work. Although the RFE 
concerned the petitioner's Form 1-140 petition, the RFE listed the receipt number of the Form 1-485 
adjustment application that the petitioner had concurrently filed with the petition. On January 6, 
2010, the director issued a second RFE, this time referring to the petition rather than the adjustment 
application. Because the response period for these two RFEs overlapped, and the petitioner 
submitted many of the same exhibits in response to both notices, the AAO will consider them here 
collectively. The AAO notes that, in the second RFE, the director repeatedly referred, erroneously, 
to the petitioner's research work. Such references do not apply because the petitioner is not a 
researcher. This error, however, does not invalidate the RFE as a whole. 
In a response letter dated January 15, 2010, the petitioner stated: 
My vocation as a freelance management consultant allows me to explore numerous 
opportunities to delve into current areas of interest which can be limited by being 
employed by another entity. Being self-employed gives me the freedom to choose 
any field of expertise I want to focus on and work with any type of business entity or 
take on any project that can help further my career and personal development while 
fulfilling my sense of mission. 
I chose to focus my efforts and devote my skills to helping small businesses because I 
firmly believe that they drive the U.S. economy. Often referred to as the 'backbone 
of the U.S. economy,' small businesses represent 99.7 percent of all finns, create 
more than half of the private non-farm gross domestic product and also create 60 to 
80 percent of the net new jobs, according to the Small Business Administration Office 
of Advocacy. 
For my part, if I can help individuals who desire to become one of these productive 
job-creating entrepreneurs, I can make a significant impact in my community and this 
nation's economy .... 
Ideally, in response to your Request for Evidence (RFE) notice, I should present 
record of past achievements but this is not realistic or practical for me at this point, 
given the time limit and travel constraints, as these documents can only be obtained 
from my previous employers in the Philippines - going ten or even twenty years 
back. 
Regarding the petitioner's actIvItIes "ten or even twenty years" ago, the AAO notes that the 
petitioner was not a freelance management consultant in the Philippines in the 1990s. Rather, she 
worked for a succession of employers, such as those documented in her initial submission. The 
petitioner continued: 
My vocation as a freelance management consultant has a prospective benefit that will 
be national in scope because as each small business gets established and remains 
profitable, their suppliers from different parts of the country can also remain in 
business and retain or even create more jobs .... I have reproduced copies of actual 
receipts to illustrate and emphasize the national impact of each small business. 
Small businesses, though locally situated, purchase equipment and supplies ... from 
different states all over the country. . . . Moreover, each small business, as it 
continues to grow and expand, has the potential either to go into franchising or to 
spawn other types of businesses. 
As an illustration of the claimed national scope of her work, the petitioner submitted copies of 
invoices relating to "a small bakery cafe that [she] assisted in setting up." The documents show that 
the cafe bought supplies from companies in New York, Illinois, Alabama, Florida and Nevada. The 
petitioner portrayed the , as an example of her consulting work, but the 
receipts show that the petitioner herself purchased the items. Prior to those 
certificates in the record show that the petitioner took three courses on 
The available evidence indicates that the petitioner did not simply "assist[] in setting 
up" the company~tead, to have been an active participant in that company. The 
petitioner set up~ in 2006, but she did not submit any evidence to show what 
subsequently happened to the business. The petitioner did not demonstrate that 
was particularly successful, or even still existed in 2010. The petitioner's waiver claim rests entirely 
on her claimed expertise in business consulting, and therefore the lack of information about that 
business - her own chosen example of her activities - is a major omission. 
Page II 
The petitioner also submitted sample materials relating to a seminar, 
that she offered in August 2009. The materials indicate that the seminar took place, but do not 
establish its impact or distinguish the petitioner from others who offer similar services. 
Further witness letters accompanied the petiti(me:r's re~:pons(~s to the two RFEs. The petitioner 
submitted a second letter from the The name on this letter is_ 
which is apparently a variation on the name from the earlier letter; the 
<Tn','nrpo on the two letters appear to belong to the same person. stated that the 
petitioner "has freely shared with readers of _ .. her vast and I_Tf'op,,,,,l,pI1 knowledge 
of business management and entrepreneurship," while receiving "no compensation." 
a skin care clinic in San Leandro, stated: "[the 
petiticmelr]llltn)dllce:d me to a .. Last year, as a favor, [the 
petitioner] translated one of our documents into Tagalog because we have many Filipino clients." 
The petitioner submitted several letters and electronic mail messages from individuals in or near San 
Leandro who had not yet used the petitioner's consulting services, but who planned to do so in the 
near future because of various economic circumstances. These letters do not establish the national 
scope of the petitioner's occupation or her track record as a management consultant/analyst. 
Because the petitioner had not yet performed any work for these prospective clients, they were not in 
a position to evaluate the petitioner's work. 
rp,'pi",,·rl consulting services from the petitioner. _ 
stated that the petitioner "has volunteered her 
services as "has greatly helped [the business] eliminate 
unnecessary processes and minimize potential wastes." The petitioner submitted no documentary 
evidence to provide specific support for these vague assertions. It would appear that increasing 
efficiency and reducing waste are basic functions of a management consultant, rather than hallmarks 
of distinction that would single the petitioner out for the national interest waiver. ••••• 
_ letter simply does not contain enough information to justify the finding that the petitioner 
qualifies for a special exemption from the job offer requirement that normally applies to the 
classification that she has chosen to seek. 
In the August 25, 2010 denial notice, the director found that the intrinsic merit of the petitioner's 
occupation "is immediately apparent." Regarding national scope, however, the director concluded 
that "the impact of the regionalized clientele would be so attenuated at the national level as to be 
negligible." The director also found that the petitioner had failed to show tbat her past consulting 
activities have had any significant effect on businesses in the United States. 
On appeal, the petitioner, referring to herself in the third person, stated: 
It should be noted that in the nine years prior to the filing of the Form 1-140 
Immigrant Petition, the petitioner's employment opportunities had been adversely 
Page 12 
affected and severely limited by her immigration status. Without work authorization, 
Social Security Number and Driver license, the petitioner's mobility had been greatly 
restricted to a particular geographic area, thus, the regionalized clientele and the 
attenuate impact and contribution to the industry or field. 
However, despite this extremely difficult situation, the petitioner was able to perform 
consulting efforts such as helping some investors establish a small bakery cafe and 
other small businesses with their business plans, feasibility studies, and management 
systems which cannot be considered a usual and ordinary accomplishment by every 
average U.S. worker with the same knowledge and capabilities even with the 
advantage of a legal status or citizenship .... 
The reference letters from prospective and existing clients were speculative in nature 
and were attempts to forecast anticipated accomplishments because ofthe uncertainty 
of the petitioner's/consultant's future immigration status pending approval of the 
Form 1-140 petition. These clients were not willing to risk their potential business 
future hiring a management consultant who may not be able to see them through the 
completion of their business startup or expansion project. 
The petitioner has acknowledged that she has been in the United States with no lawful status since 
her status as a 8-2 nonimmigrant visitor expired on December 26, 2000. 1 While it is clearly true that 
a lack oflawful status has restricted the petitioner's options in the United States, these limitations do 
not entitle the petitioner to favorable consideration. Applicants for the national interest waiver must 
meet the various thresholds set forth in NYSDOT, including national scope and a history of 
influential achievement in the field. useIS cannot and will not waive these fundamental 
requirements simply because the petitioner claims that her lack of lawful status left her unable to 
work as she would have liked. It is pointless to speculate about what might have happened if the 
petitioner had been able to work in the United States, or had returned to the Philippines and worked 
as a management consultant there. The petitioner cannot sidestep the requirement of a track record 
of impact and influence merely by claiming that she would have earned such a track record by now 
under different circumstances, or that she intends to earn one as soon as she is able to work freely in 
the United States. 
In terms of her existing track record, the petitioner has claimed that she 
was able to perform consulting efforts such as helping some investors establish a 
small bakery cafe and other small businesses with their business plans, feasibility 
studies, and management systems which cannot be considered a usual and ordinary 
accomplishment by every average U.S. worker with the same knowledge and 
capabilities. 
1 The petitioner also acknowledged that her father filed a Form 1-130 immediate relative petition on her behalf on April 
18, 2001, which the California Service Center approved on August 1, 2001. Due to backlogs in visa number allocation, 
the petitioner has not yet been eligible to adjust status based on the approval of that petition. 
Page 13 
The petitioner submits no objective evidence at all to show that her past work "cannot be considered 
a usual and ordinary accomplishment" within her field. The petitioner provides no baseline for what 
management consultants ordinarily achieve, and no evidence that her achievements have exceeded 
that benchmark. She provides no details about her own work at all except to mention, once again, 
the "small bakery cafe." She does not show that this business was successful in any way, or even 
that it still exists at all, and yet she maintains that her work with the cafe "cannot be considered a 
usual and ordinary accomplishment" within her field. Hyperbole without substance cannot form the 
basis for a successful appeal. The petitioner, on appeal, has offered no argument or evidence to 
show that the director's decision was in error. 
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 ofthe 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.