dismissed EB-2 NIW Case: Mechanical Engineering

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersona) privacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
PUBLIC COpy
FILE:
EAC 05 062 52778
Office: VERMONT SERVICE CENTER Date: NJG. 28 2007
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.
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2...-RO bertP. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa
petition. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now
before the AAO on a motion to reopen. The motion will be granted, the previous decision of the AAO
will be affirmed and the petition will be denied.
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 mechanical engineer. 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 reiterated his experience, proposals, job offers, linguistic abilities, education
and work experience. The AAO noted:
The issue is not whether or not the petitioner has skills that make him desirable to
U.S. employers. Rather, the issue in contention is whether or not the petitioner offers
a prospective national benefit to the United States that is of such unusual magnitude
(compared to other professionals with advanced degrees) that it is in the national
interest to waive the job offer/labor certification requirement that, by law, normally
attaches to the classification the petitioner has chosen to seek.
The AAO then concluded that the petitioner had not demonstrated that his efforts had already proven
effective or had otherwise attracted significant attention beyond his own circle of collaborators and
acquaintances.
According to 8 C.F.R. § l03.5(a)(2), a motion to reopen must state the new facts to be provided and be
supported by affidavits or other documentary evidence. On motion, the petitioner fails to contest any of
the factual or legal conclusions in the AAO's decision. Rather, the etitioner relies on his recent
attainment of a job with Xerox. The petitioner submits letters from the technical
recruitment manager at Xerox, and I an engineer and technical consultant in Oregon
who claims to manage his own research and manufacturing company in Russia. The petitioner has
provided new facts and, thus, has submitted a proper motion. Nevertheless, the petitioner must still
demonstrate his eligibility as of the date the petition was filed. See 8 C.F.R. § 103.2(b)(12); Matter of
Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, any new evidence submitted on motion must
relate to the petitioner's eligibility as of that date. For the reasons discussed below, we find that the
petitioner has not overcome the AAO's concerns and, therefore, we affirm the AAO's previous
decision.
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. --
Page 3
(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 be sought by an employer
in the United States.
The sole issue in contention 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 the phrase, "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, 101st Cong., 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 [now Citizenship and Immigration Services] 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 of New York State Dep 't of Transp., 22 I&N Dec. 215, 217-18 (Comm. 1998)[hereinafter
"NYSDOT"], 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. 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 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 on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
interest. Id. 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. Id.
Neither the director nor the AAO contested that the petitioner works in an area of intrinsic merit,
engineering. While the director questioned whether the proposed benefits of the petitioner's
employment would be national in scope, the AAO accepted that at least one of the proposed benefits
would be national in scope. On Part 6 of the petition, the petitioner indicated that the proposed
employment was as an "engineer-mechanic." The nontechnical job description is "Building and
road machines and equipment, constructing and driving of highways." In response to the director's
request for additional evidence, the petitioner discussed his experience in both engineering and
management. He provided letters attesting to his proposed filter to reduce fuel consumption and
emissions and import/export proposals. Clearly, reducing fuel consumption and emissions would be
national in scope. On motion, however, the petitioner indicates that he is working for Xerox. While
the technical consultant supporting the appeal, still as~etitioner' s filter is
"[a]mong the most promising devices," neither the petitioner nor _of Xerox explain
how the petitioner will promote this filter while working at Xerox or provide any other benefits that
are national in scope.
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. 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 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 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. 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.
As noted by the AAO, the petitioner's initial submission consists largely of documentation of his
credentials as an engineer, such as copies of educational transcripts and professional certificates.
The petitioner also submitted employment letters one of which, as noted by the AAO, was
inconsistent with other evidence of record. Specifically, General Manager of
stated, in a June 2004 letter that the petitioner "is employed by our company since
02/10/19~ on a leave of absence for emergency medical treatment. As noted by the AAO,
however_ General Manager of Fedco Metals Industries asserts that the petitioner worked
there from August 2001 to June 2003 and the petitioner had already arrived in the United States in
December 2003, five months before the date of letter. It is incumbent upon the
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591­
92 (BIA 1988). The petitioner does not address these inconsistencies on motion.
As the initial submission only established the petitioner's qualifications as an engineer, the director
requested additional evidence relating to the standard for waiving the alien employment certification
set forth in NYSDOT, 22 I&N Dec. at 217-18. In response, the petitioner stated:
I am considering that there are several reasons for underlining the importance of me,
as [a] qualified person for [the] NIW. Let me list a few of them:
I have great experience in both ... Engineering and in Management
I have a lot [of] proposal[s] from American companies and former [S]oviet
republic's companies about [pro]spective partnership[s]
I have two specific job offers from American Employers
I am four language speaking person (Lithuanian, Russian, Hebrew and English)
that is very important in highly populated area by immigrants
I am holder of Master Degree in Mechanical Engineering
I have 10 years of successful[l] ... experience in Engineering and in Business
I have the inventive cast of mind and a several successfully implanted invention
[sic]
The petitioner stated that he planned, at first, "to earn good experience" with an "appropriate
American company," and then to establish his own company. The petitioner submitted letters from
several individuals who have worked with the petitioner in the past or who wish to work with him in
the future. None of the letters discussed the petitioner's past history of accomplishments. Rather,
they speculate as to the petitioner's future potential.
The director denied the petition, concluding that the petitioner had not established that he had
developed widely adopted technology or was otherwise influential.
On appeal, the petitioner asserted that he had "submitted [a] lot of proposals and business offers
from U.S. or Eastern European Companies," and that these letters serve as "proof of my qualification
and the proof of unusually high demand of my skills and experience for both U.S. and Eastern
European market." The petitioner also cited his "education level." Finally, the petitioner discussed
his job prospects.
Page 6
The AAO concluded that simply demonstrating that the petitioner was employable and had
experience with specific regions of the world did not "rise to the level of national interest." The
AAO also noted that the classification sought was as a member of the professions holding an
advanced degree and concluded that merely possessing the required education was insufficient to
warrant the extra benefit of waiving the alien employment certification.
While the AAO acknowledged that increasing fuel efficiency and reducing emissions is in the
national interest, the AAO concluded that simply working in this area was insufficient to warrant a
waiver of the alien employment certification in the national interest. The AAO further concurred
with the director that the petitioner had not shown that his efforts in this area had already had
demonstrated effects, or had otherwise attracted significant attention beyond the petitioner's own
circle of collaborators and acquaintances.
On motion, the petitioner submits another letter speculating as to the potential for the petitioner's
filter and evidence that he is employed at Xerox. None of this evidence overcomes the basis of both
the director's denial and the AAO's decision, that the petitioner has not demonstrated that this filter,
or any other inventiililnor techni ue developed by the petitioner, had already proven influential as of
the date of filing. I oes not assert that the petitioner has any skills or abilities that
cannot be articulate on an app rca Ion for alien employment certification.
As stated in the AAO's previous decision, the petitioner has shown that he is an experienced
mechanical engineer who has also demonstrated aptitude in business. While he has been able to
provide some specific information about particular projects he has undertaken, he has not shown that
these activities distinguish him from other engineers/businessmen to such an extent that he qualifies
for the special additional benefit of a national interest waiver, over and above the underlying
immigrant classification of a member of the professions holding an advanced degree. The fact that
the petitioner has now secured employment with a prestigious employer does not change the AAO's
initial analysis.
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. Accordingly, the previous decision of
the AAO will be affirmed, and the petition will be denied.
ORDER: The AAO's decision of April 19, 2006 is affirmed. The petition is denied.