dismissed EB-2 NIW Case: Network Engineering

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PUBUCCOpy 
u.s. Department of Homelsnd 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 05 2012 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act. 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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 1-290B. Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
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 to classifY the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.c. § I I 53(b)(2), as a member ofthe professions with postbaccalaureate 
experience equivalent to an advanced degree. The petitioner, a manufacturer of high performance 
communication products, seeks to employ the beneficiary as an 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 beneficiary qualifies for classification as a member of 
the professions with the equivalent of 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 from counsel and copies of previously submitted exhibits. 
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. 
(B) WaiverofJob 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 beneficiary 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., II (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 USerS] 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 Tramportation, 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, 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 petitioner filed the Form 1-140 petition on December 14, 2009. In an accompanying letter, 
the petitioner's immigration case manager, stated: 
We have offered [the beneficiary] a permanent position as a Member of Technical 
Staff (Engineer), where he would continue to be involved in the design, development 
and maintenance of Internet Protocol (IP) and Multi-Protocol Label Switching 
(MPLS) signaling software as a crucial part of Juniper Operating Systems (JUNOS) 
routing protocols team. [The beneficiary] has been working to create more reliable, 
efficient and secure network switches and routers, to the benefit of the United States 
economy, defense and working conditions .... 
[The petitioner] designs, develops, and sells products and services that provide 
network infrastructure, which creates environment for accelerating the deployment of 
services and applications over a single Internet Protocol (IP) based network. ... 
[The beneficiary] is responsible for the following: 
Page 4 
• Provide support for Multicast Virtual Private Network (VPN) to use Label 
Distribution Protocol (LDP) Point to Multi-point (P2MP) Label Switch Paths 
(LSPs) as provider tunnels in Juniper Operating System (JUNOS); 
• Implement P2MP extensions to LDP LSPs to allow for data delivery in a 
point-to-multipoint fashion in an [sic] Multi-Protocol Label Switching 
(MPLS) core network; 
• Addition of nonstop routing support for LDP Operations Administration 
Maintenance (OAM) which used Bidirectional Forwarding Detection (BFD) 
in JUNOS; 
• Addition of failure actions for LDP LSPs which are triggered by BFD down 
events; and 
• Maintain LDP code based and fix numerous issues in this area . 
. . . As demonstrated by his past record of original scientific research and noteworthy 
work for distinguished companies, his authorship of a published article at an 
international conference and reference letters from experts in the field, [the 
beneficiary's] continued employment in the U.S. will provide significant future 
benefits to the national economy and work environments of companies across the 
country .... 
[The beneficiary's] work on the overall quality and reliability of integral networking 
products is of substantial intrinsic merit because it (I) improves the U.S. economy by 
ensuring the quality of [the petitioner's] products in a competitive international 
market and (2) benefits U.S. companies by reducing costs, increasing employee 
output and improving working conditions with faster, more reliable and more secure 
private and public networks .... 
The benefits of [the beneficiary's] important work in network routing span the entire 
nation and are not limited in geographic scope. [The petitioner's] market success has 
a significant positive impact on the U.S. economy as a whole, generating taxable 
revenue and international acclaim for U.S. technological research and development. 
The benefits of national security are also applicable to the entire nation, with secure 
information transmissions critical to ensuring national defense. 
Finally, it is difficult to think of an industry today that is not dependent upon the 
Internet and the telecommunication industry. [The petitioner's] products are the basis 
of networks across the nation, essential for the functions and applications of 
numerous U.S. companies across myriad industries. The efficiency and reliability of 
these networking routing products, as designed and developed through [the 
beneficiary's] work, are improving the work conditions and economic outputs of U.S. 
companies nationwide .... 
-Page 5 
[The beneficiary's] work serves the national interest to a substantially greater degree 
than a similar, minimally qualified worker because he has proven expertise in design, 
enhancement and implementation of next generation networking routers and switches, 
which he has already been applying as part of [the petitioner's] engineering team .... 
[The beneficiary] is an accomplished software engineer who stands out in his field 
based on his particular expertise and experience in quality assurance of networking 
products .... [The beneficiary] has already made valuable contributions to the field of 
network infrastructure technology and continues to develop groundbreaking network 
software today .... 
[The beneficiary] has a proven track record of success in network software 
engineering and innovation. From March 2004 to June 
contributed his talents to improving network technology at 
At _ [the beneficiary] achieved numerous 
routing protocols. He implemented the core routing 
protocol of the Internet, graceful restart and added security functions for a Broadband 
testing system. [The beneficiary] further developed_ to support 
He enhanced several other protocols to 
restart additional security measures. [The 
beneficiary] played a critical role in maintaining numerous routing protocols on a 
Broadband platform and fixing existing software bugs in the system. 
In his present role at [the petitioning company], [the beneficiary's] unique expertise 
in network routing software is of tremendous value in the continued development of 
cutting edge, next generation networking products. His extensive know ledge 0 f 
routing protocols and Point to Multi-point network technology has been a critical 
component of [the petitioner's] advancement and successes in the field. 
The petitioner submitted a copy of the first page of a conference presentation that the beneficiary co­
authored while he was a graduate student at the University of Hawaii. The petitioner submitted no 
evidence of the importance or impact of this presentation, nor did the petitioner establish that the 
presentation of a conference paper is a .. achievement unmatched by most graduate 
students in the beneficiary's specialty. basically claimed that the presentation's very 
existence self-evidently demonstrates the beneficiary's talent and the importance of his work. 
Two witness letters, both from individuals at_ 
, stated: accompanied the initial submission. 
After fmishing his Master degree, team at the _ 
software development department 0 in March 2004. He 
demonstrated his outstanding technical skills within a short period of time after 
joining the company. As his manager, I have witnesses his extraordinary ability in 
-Page 6 
this field. He has perfonned in critical and leading roles in many projects that were 
not expected from a fresh graduate. For example, [the beneficiary] played a key role 
in implementing graceful restart for_ 
Broadband testing system and adding MD5 support for _. These were 
groundbreaking developments and critical to maintaining the efficiency and security 
of the core routing protocol ofthe Internet. 
stated: 
2006 to June 2007, I was [the beneficiary's] manager at_ 
Soon after becoming his manager, I recognized just how unique 
and exceptional his so ftware engineering skills are and just how extensive his 
knowledge of networking protocols is. As his manager, I relied on [the beneficiary] 
to solve some of the most difficult and complex software problems we encountered. 
His analysis was always insightful, and his ability to deliver solutions was 
outstanding. His contributions were critical to our routing and Carrier Ethernet test 
solutions. [The beneficiary] his and was rated as a 
role model. Since his departure we have been unable 
to replace [the beneficiary's] unique skill set with any of our subsequent new hires. 
On February 11, 2010, the director instructed the petitioner to "submit further evidence to 
corroborate claims that the national interest would be adversely affected if a labor certification were 
required" and "to establish that the beneficiary has a past record of specific prior achievement that 
justifies projections of future benefit to the national interest." The director specified that the 
petitioner "must demonstrate the beneficiary's influence on his field of employment as a whole." 
In response, senior engineering manager for the petitioning company, stated: 
[The beneficiary] has made outstanding contributions in the area of networking 
equipment for the Internet infrastructure and he is invaluable in ensuring that the 
United States continues to maintain its leadership in the growth of the Internet. [The 
beneficiary's] work is directly related to the upcoming deployment of next-generation 
mobile services and extremely high-speed Internet services .... 
I have been his manager for the past 2 years. I can say without hesitation that [the 
beneficiary] is outstanding in his field and his continued work in the U.S. will greatly 
benefit the nation. My group at [the petitioning company] is responsible for setting 
the vision and direction of enabling Internet services such as video delivery, online 
movies and TV-based video-conferencing. [The beneficiary's] contributions are very 
critical for these services to become a reality. Within a short span of time, [the 
beneficiary] took over responsibilities of the level of senior engineers and architects. 
He has a great systcm-wide knowledge and is currently interacting with and helping 
the Internet providers in designing their next generation networks. [The 
Page 7 
work on next-generation video-delivery on the Internet was 
as a prestigious world conference in Paris -
and was it [sic] very well received. His upcoming work is 
directly related to making low-cost telecommunication equipment that can provide 
10-times faster Internet access to our homes. The benefits ofthis work will reach the 
entire nation as a whole . 
. . . [The beneficiary's] work is directly related to the fast-paced progress of the 
Internet and greatly contributes to keeping the U.S. at the forefront of research and 
progress in the industry. 
The director denied the petition on August 4, 2010. The director acknowledged the substantial 
intrinsic merit and national scope of the beneficiary's occupation, but found that the petitioner had 
not established that the beneficiary "has personally achieved a record of success in the field, or 
recognition by his peers or by governmental agencies, which warrant a national interest waiver." 
On appeal, counsel cites previously submitted evidence, stating: 
[The beneficiary's] exceptional qualifications are reflected in his past record of 
success as an engineer, his authorship of an article published at a prestigious 
international conference, and reference letters from three experts in the field .... The 
Administrative Appeals Office has found that letters of support mostly from 
colleagues are sufficient to satisty the criteria for national interest waiver, when the 
field is nomesearch and more narrow. 
The witnesses have asserted that the beneficiary is an above-average engineer in his specialty, but 
have provided no concrete demonstration of the beneficiary'S impact on his field. 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 automatically 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 quality for a waiver just by demonstrating a degree of expertise significantly above that 
ordinarily encountered in his or her field of expertise. 
To support the assertion about "letters of support mostly from colleagues," counsel cites an 
unpublished AAO decision from 2003. Counsel has furnished no evidence to establish that the facts 
of the instant petition are comparable to those in the unpublished decision. While the USCIS 
regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
The Board ofImmigration Appeals (BrA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
Page 8 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter (Jf Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
(Jf Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content ofthose letters as 
to whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158,165 (Comm'r. 1998) (citing Matter of Treasure Craft (JfCalifornia, 14 I&N Dec. 190 (Reg'!. 
Comm'r. 1972)). 
In this instance, several witnesses have asserted that the petitioner played a significant role in a 
particular project, but the record lacks objective evidence to show the importance of the project 
relative to other efforts undertaken by the petitioner and other comparable companies. The overall 
size or influence of the petitioning entity does not grant proportional importance to all projects 
within that company. The witness letters do little more than attest to the beneficiary'S professional 
competence in his chosen field, with no demonstrable indication that the beneficiary stands out from 
his peers to an extent that would justifY the additional benefit of a national interest waiver. 
The significance 0 f the beneficiary's individual contributions is not self-evident from the 
descriptions provided, and it cannot suffice for the petitioner simply to describe those contributions 
and declare them to be particularly important. 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)). As is clear from a plain reading ofthe 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 ofthe 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.