dismissed EB-2 NIW Case: Network Advertising

identifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: FEB 2 1 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. Ci tizenshi p 
and Immigration 
Services 
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)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~ 
7 Perry Rhew -, 
Chief, Administrative Appeals Office 
I 
www.uscis.gov 
Page 2 
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. § 1153(b)(2), as an alien of exceptional ability in the arts, sciences or business, or as 
a member of the . an advanced degree. The petitioner seeks to work part-time as 
founder of and also as an advertiser doing 
business as 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 irtterest of the United States. 
On appeal, the petitioner submits a statement and evidence of past and recent activities. 
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. 
(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 sole issue in contention in the director's decision 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, 101st Cong., 1st Sess., 11 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (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 of New 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 seeking the waiver 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 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 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 Form 1-140 petition on August 17, 2010. On that form, the petitioner 
provided the following information about the proposed employment: 
Job Title 
Nontechnical Description of Job 
Is this a full-time position? 
Wages 
Founder 
Manage all company operations, formulate 
policies & provide overall direction 
No (20 hrs. per week) 
$35,000 per year 
Page 4 
On his resume, the petitioner provided the following description of his current work: 
• Founded a company called 
_ which aims to do technology based network advertising 
• Provisional Patent Filed - A self sustaining methodology for generating 
advertisement revenues 
• Developed and authenticated ad-serving methodology which rivals the best in 
business 
• Company _ collaborating with educational institutes like University of 
California Los Angeles (UCLA), Indian Institute of Technology - Bombay (IITB) 
& California Institute of Technology (CalTech) 
The petitioner submitted materials such as a table marked "Economic Crises and Higher Education 
Colleges," but no evidence of the active collaborations with UCLA, IITB or CalTech. 
The petitioner submitted several witness letters attesting to his academic work. None of the 
witnesses claimed any expertise in advertising or advertising consulting, and none of them had much 
to say about the petitioner's present work with to its existence and 
predict its eventual success. For instance, 
Houston, Texas, stated: 
[The petitioner] is leveraging the skills acquired at _ and his years as a 
professional in the Information Technology Industry to deliver solutions and service 
for the clients. The company operates at the interface of educational institutions and 
industries and its revenue model is advertising. It is operating at break-even for now 
and once the necessary funding for expansion is secured, it aims to generate huge 
profits and hire many high skilled workers. 
The AAO notes that also discussed the petitioner's Massachusetts Institute of 
Technology (MIT) master's thesis, which "focuses on assembly ramp-ups in the auto industry and 
how due to various auto industry is unable to compete globally due to delays in 
vehicle launches." claimed that the petitioner's "recommendations were 
implemented and resulted in ... major restructuring of the US automotive industry." The record 
contains no evidence to support claim. 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. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Bedford, Massachusetts, previously 
collaborated with the petitioner at MIT. stated that the petitioner "has developed a very 
novel ad-optimization technique. This venture of his will not only generate revenues for American 
manufacturers and higher-education institutions, but will create jobs for many Americans in these 
Page 5 
recessionary times." _ also stated that the petitioner "has been successful in selling his 
business process to several institutions of higher-education to help bolster their financial position to 
keep tuition rates down, while maintaining key faculty and staff. His process . . . has resulted in 
avoiding lay-offs or passing additional tuition fees to their students." _ identified no 
examples, and the record contains no evidence from any "institutions of higher-education" to 
corroborate this claim. 
Other witnesses, many of them MIT faculty members~ed the petitioner's graduate work while 
offering vague predictions for the future success of _. For example, ••• 
senior procurement and supply chain manager for Houston, Texas, called the 
petitioner's new venture "another of focus on solving complex problems 
with multiple deliverables." MIT contended: "Once [the petitioner's 
business plan] is effectively executed, it will not only generate tremendous profits but also create 
jobs for the skilled American workforce in these recessionary times." 
The petitioner's initial submission included no documentary evidence to show what _ has done 
or how far it has come in implementing its business plan (which is likewise absent from the record). 
On October 4, 2010, the director instructed the petitioner to "submit documentary evidence that 
establishes that the petitioner's proposed employment is national in scope" and which shows that the 
petitioner has "a past record of specific prior achievement that justifies projections of future benefit 
to the national interest." 
In response, the petitioner documented his attendance at various conventions. The petitioner also 
submitted a partial copy of a manuscript of a scholarly article, 
which the author thanked the petitioner "for technical cost modeling." The 
copies of letters from 2001 and 2002 confirming his graduate studies at MIT and a summer 
internship at Houston, Texas. None of these materials relate to 
the petitioner's present work with _they relate to his now-completed studies, and predate the 
founding of _by several years. 
The director denied the petition on January 11, 2011. The director acknowledged the intrinsic merit 
of the petitioner's occupation, but found that the petitioner had not established its national scope or 
established his own impact and influence in that field. 
On appeal, the petitioner observes that he has submitted letters from witnesses in Massachusetts and 
Texas, while he was (at the time he filed the appeal) based in California. The petitioner asserts that 
the national character of his work is therefore evident. This assertion is not persuasive, as he had 
studied and worked in Massachusetts with colleagues who later relocated to Texas. More generally, 
however, the petitioner's field of advertising consulting is not inherently local in scope, and national 
advertising campaigns are commonplace. Because the "national scope" prong of the NYSDOT 
national interest test relates to the occupation, rather than to the specific alien, the AAO will 
withdraw the director's finding that the petitioner's work lacks national scope. 
-Page 6 
The director had noted the lack of corroboration for the claim that the petitioner's work had 
transformed the automobile industry. The petitioner, on appeal, states: "The sensitive nature of the 
work and the results is the reason why it is taking so long for it to surface." Be that as it may, the 
record is devoid of evidence to support the claims made by witnesses who, themselves, are not in the 
automobile industry. The petitioner submits a copy of a 2003 expense invoice from 
which the petitioner calls "a receipt of the meeting between me and the then director 
of the automotive sector of the consulting company." Indirect evidence that a meeting occurred is 
not sufficient to establish that the petitioner is responsible for "major restructuring of the US 
automotive industry." Furthermore, the petitioner does not explain how this meeting in 2003 has 
anything to do with his intended future work in "technology based network advertising." Evidence 
of success in one field does not ensure future success in a different field. In this instance, the 
petitioner has presented only unsubstantiated claims of success in one field. The evidence of record 
is barely sufficient to show that _ actively conducts business, much less that the petitioner has 
had significant influence on his newly adopted field of technology based network advertising. 
As is clear from a plain reading of the statute, possession of an advanced degree does not suffice to 
qualify one for an exemption 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 occupation, 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. 
Beyond the director's decision, the AAO has identified a second, fundamental basis for denial of the 
petition. The AAO may identify additional grounds for denial beyond what the Service Center 
identified in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 
1025, 1043 (E.D. Cal. 2001), aft'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 
143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
By statute, the national interest waiver is available only to aliens of exceptional ability in the arts, 
sciences, or business, and to members of the professions holding advanced degrees. The petitioner 
has not specified which of these classifications he seeks, but his emphasis on his advanced degree 
leans toward the latter classification. 
The USCIS 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. The petitioner has not set forth any coherent claim to have met at least three of these 
standards. 
The director, in the denial notice, stated: "The petitioner has submitted evidence that establishes that 
the beneficiary holds the requisite advanced degree required under Service law." The record indeed 
shows that the petitioner holds a Master of Science in Technology and Policy degree from MIT. An 
advanced degree, however, does not automatically qualify the petitioner for classification under 
-Page 7 
section 203(b)(2) of the Act. He must show that he is a member of the professions holding an 
advanced degree. Therefore, the petitioner must show that his occupation falls under the regulatory 
definition of a profession, specifically "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 requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2). 
Section 101(a)(32) of the Act reads: "The term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The petitioner's occupation is not among those listed. 
He must, therefore, establish that a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation. Without evidence to that effect, USCIS cannot 
properly classify the petitioner as a member of the professions holding an advanced degree. 
The petitioner has documented his past employment in technology-related fields, but he submitted 
nothing to show that the lack of a bachelor's degree would actively prevent an individual from 
starting his or her own advertising consulting company, in the same way that, for example, a lack of 
such a degree would prevent one from working as a schoolteacher or physician. The occupations 
listed at section 101(a)(32) of the Act have professional standards and safeguards (such as licensure or 
certification requirements) to prevent the employment of unqualified individuals and, thereby, protect 
the integrity of the industry. The petitioner has not shown that advertising consulting has similar 
arrangements in place. 
For the reasons discussed above, the petitioner has not met his burden of proof to show that he qualifies 
for classification as a member of the professions holding an advanced degree, or as an alien of 
exceptional ability in the sciences, the arts, or business. The AAO will therefore withdraw the 
director's finding that the petitioner's advanced degree is, by itself, sufficient evidence in this regard. 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.s.c. § 1361. The 
petitioner has not met that burden. 
ORDER: The appeal is dismissed.