dismissed EB-2 NIW Case: Network Engineering

DATE: DEC 282011 
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. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
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: 
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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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. § 1153(b)(2), as a member of the professions with postbaccalaureate 
experience equivalent to an advanced degree. The petitioner, a manufacturer of high performance 
communication products, seeks employment as a regression test 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 
ofthe 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 ofajob offer would be in the national interest ofthe United States. 
On appeal, the petitioner submits a brief from counsel and copies of previously submitted exhibits. 
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) 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 petitioner holds a bachelor's degree and post-baccalaureate experience equivalent to an advanced 
degree under the U.S. Citizenship and Immigration Services (USCIS) regulations at 8 C.F.R 
§§ 204.5(k)(2) and (3)(i)(B). The director did not dispute that the petitioner qualifies as a member of 
the professions with the defined equivalent of 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 
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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). 
Supplementary information to regulations implementing the Immigration Act of 1990 (lMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now USCIS] believes it appropriate to leave the application of this test 
as flexible as possible, although clearly an alien seeking to meet the [national interest] 
standard must make a showing significantly above that necessary to prove the 
"prospective national benefit" [required of aliens seeking to qualify as "exceptional. "] 
The burden will rest with the alien to establish that exemption from, or waiver of, the 
job offer will be in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of 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. N ext, 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 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 February 3,2010. In an accompanying letter, _ 
_ the petitioner's immigration case manager, stated: 
We have offered [the beneficiary] a permanent position as a Regression Test 
Engineer, where he would continue to be involved in ensuring the overall quality of 
our company's products. [The beneficiary] has been integrally involved in the 
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development and testing phases of valuable routers that lie at the heart of high speed 
networks critical to the United States economy and companies across the nation. This 
position requires [the beneficiary's] expertise .... 
[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: 
• Working with Product Lifecycle Management softwarelhardware team to 
ensure overall quality of company products; 
• Developing feature test plans; 
• Designing, executing and automating test suites, reporting product defects and 
verifying fixes; 
• Communicating test results to engineering and cross-functional teams; and 
• Supporting beta testing and various customer issues . 
. . . As demonstrated by his past record of original scientific research and noteworthy 
work for distinguished companies, his academic distinctions and honors, and three 
letters of reference from experts in the field, [the beneficiary's] continued 
employment in the U.S. will provide significant future benefits to the national 
economy and companies across the nation .... 
[The beneficiary's] work on the overall quality and reliability of integral networking 
products is of substantial intrinsic merit because it (1) 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 infrastructure quality 
assurance 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. 
In addition, it is difficult to think of an industry today that is not dependent upon the 
Internet and the telecommunication industry. [The petitioner's] products form the 
basis of networks across the nation, essential for the functions and applications of 
numerous U.S. companies across myriad industries. The cost-effectiveness, 
efficiency and reliability of these networking infrastructure products, as tested and 
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improved upon through [the beneficiary's] work, are benefiting U.S. compames 
nationwide .... 
Finally, [the beneficiary's] work serves the national interest to a substantially greater 
degree than a similar, minimally qualified worker because he has extensive proven 
expertise in software and hardware testing, which he has already been applying as 
part of [the petitioner's] test engineering team .... 
[The beneficiary] is an accomplished software engineer who stands out in his field 
based on his particular expertise and experience in developing and executing testing 
plans for network hardware and software .... [The beneficiary] has already made 
valuable contributions to the field of network infrastructure technology and continues 
to conduct critical testing of products today .... 
[The beneficiary] has a proven track record of success in network infrastructure 
product testing. Prior to joining [the petitioning company], ... as early as 2003 he 
developed and executed various test plans, verification testing and automation~ 
and mentored Hardware Product Verification Test Engineers for _ 
[The beneficiary] then designed and developed 
Hardware Product Verification synchronization feature Automation So ftware for 
He further developed his expertise again at_ 
returned to mentor newer employees in~ 
Transport System. His work ensured that each company's hardware and software 
delivered the highest performance possible. 
In his present role at [the petitioning company], [the beneficiary's] unique expertise 
in testing network infrastructure products is of tremendous value in ensuring the 
quality of innovative multi-chassis routers. His extensive knowledge of testing 
design, development, execution and documentation has been a critical component of 
[the petitioner's] advancement and successes in the field. 
The petitioner submitted copies of various internal awards and certificates that _ presented to 
the beneficiary during his employment there. The record contains no background information about 
the significance of the awards. 
Three witness letters accompanied the initial submission. 
stated: 
I have known [the beneficiary] in the capacity [of] a manager of his project team at 
[The beneficiary] made invaluable contributions towards 
test plans, system software verification testing and automation 
script development for Multi Service Transport System based on 
ANSI [and] ETSI was of great value to the nation, as the critical 
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bugs reported by [the beneficiary] ensured that the quality ofthe software was never 
compromised, leading to stable and reliable customer deployment and hence a stable 
and reliable Network as a whole. 
[The beneficiary] has a special knack for churning out top-notch automation scripts, 
and the ease with which he generated efficient algorithm designs is especially 
noteworthy. For instance, [the beneficiary] developed ingenious automatic 
generation software for the hardware product verification team at 
This unprecedented software reduced the report generation time from 4 weeks to a 
few seconds. Needless to say, the team has been using his so ftware as an 
indispensable tool to generate their test reports ever since .... 
[The beneficiary] developed an innovative web based training software 
fresh entrants .... Later, this software also played a pivotal role in training the entire 
Business unit for_ In addition, [the beneficiary's] contribution 
towards organizin~ssions and his creative agendas for formal and 
informal interactions helped the trainees blend into the team culture and processes 
smoothly. 
senior product manager stated: 
I lead [sic] [the beneficiary] in some of the projects for the Software Validation and 
Test Team for the Optical Transport Business Unit at 
part 0 project a ill varIOUS teams across 
the company. He was uniformly recognized as a stellar engineer by everyone he 
touched .... 
His most important/substantial contribution came about in where he 
developed a web based reporting software for the Hardware Product Verification 
team which reduced the reporting time from a month[']s time to a matter of seconds . 
. . . His strong knowledge of quality processes and drive for excellence led to the 
innovation and development of multiple tools such as Weekly Status reporting. [The 
beneficiary] displayed tremendous character in putting additional add-ons to make the 
tool extremely efficient. As always, he evaluated and experimented with available 
options and came out with a solution which is still in use and was later replicated 
across other teams. 
The third witness, identified by the single name_ is a distinguished member of technical staff 
at like the other witnesses, was formerly one of the beneficiary's 
superiors asserted that the beneficiary's development of "Automation framework 
for hardware testing of our product ... was just excellent." The witness added that the company had 
Page 7 
estimated that "3-4 people" would take six months to complete the job, but the beneficiary 
completed it by himself ''within a period of 5 odd months." 
On April 2, 2010, the director instructed the petitioner to "submit documentary evidence to establish 
that the benefits of the beneficiary's proposed employment will be national in scope," and ''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, to some 
degree, the beneficiary'S influence on the field of employment as a whole." 
In response, counsel stated that the beneficiary's work is national in scope because he "plays a 
critical role in the development of hardware and software products that form the backbone of the 
Internet." Counsel also asserted that the beneficiary "is uniquely qualified to work in the area of 
high-speed network infrastructure technology" owing to his "more than six years of professional 
experience" and ''particular expertise in development and verification of hardware and software 
products." Counsel cited the beneficiary'S "his seven (7) awards granted 
the three previously submitted witness letters, and a new letter. 
who works at ~ an unspecified position, worked with the beneficiary for a year 
He stated: 
[The beneficiary] was a part of the onsite team from~orking with [the] _ 
team here in Petaluma. He automated the Test Suite for the Wireline Synchronization 
test, which eliminated the need for manual hardware testing. His Software suite ... 
not only reduced the [testing] time from weeks to a few minutes but also provided 
better results by taking into account all the test cases that might've been missed in the 
case of manual testing. 
During this time he also designed a Test reporting software, a web-based reporting 
system ... [that] was critical in improving the turnaround time on the test report and 
hence improved the quality and overall productivity of the team. 
Critical bugs reported by the test software and quick r<3r,{"\rI~C' 
the product shipped to the worldwide consumers 0 
awarded him for his automation 
The petitioner submitted information about President Barack Obama's plans to expand broadband 
Internet infrastructure. This information addresses the national scope of the beneficiary's overall 
occupation, but does not mention the beneficiary or distinguish him from others in his field. 
The director denied the petition on June 25, 2010. The director acknowledged the substantial 
intrinsic merit of the beneficiary'S occupation, but found that the petitioner had not established its 
national scope or that the "beneficiary'S contributions in the field are of such unusual significance 
that he merits the special benefit of a national interest waiver." The director concluded that the 
witness letters "do not specifically address the significance of the beneficiary's individual 
contributions or how they have resulted in an appreciable improvement in his field of specialty. 
Consequently, the record lacks convincing evidence that he has otherwise had an impact on the 
overall field." 
On appeal, counsel maintains that the beneficiary's "crucial regression testing work on Internet 
infrastructure key products is of essential benefit to the nation as a whole, as the nation's critical 
industries, government agencies, and general economy depend upon the secure and effective 
functioning of our underlying network infrastructure." The AAO agrees with counsel's assertion. 
The beneficiary's work is not inherently local or limited in geographic scope. The petitioner is a 
national corporation with a significant national clientele (the petitioner's annual report refers to 
"more than 50,000 enterprise customers" across a variety of industries). Therefore, the efforts of 
individuals heavily involved in product development for the petitioner have national scope. 
The national scope of the beneficiary's occupation, however, does not imply that the beneficiary has 
had or will have greater impact than other qualified workers in that same national-scope occupation. 
To support the latter conclusion, counsel cites previously submitted evidence, stating: 
[The beneficiary's] exceptional qualifications are reflected in his seven (7) awards 
granted fro~ and letters of reference from four respected experts in 
the field .... The Administrative Appeals Office has found that letters of support 
mostly from colleagues are sufficient to satisfy the criteria for national interest 
waiver, when the field is nonresearch and more narrow. 
Under the USCIS regulation at 8 C.P.R. § 204.5(k)(3)(ii)(P), recognition of this kind can form part 
of a claim of exceptional ability in the arts, sciences or business. Because exceptional ability is not, 
by itself, grounds for a national interest waiver, it necessarily follows that partial evidence of 
exceptional ability is not automatically strong evidence in favor of granting the waiver. In 
appropriate instances, USCIS will consider the circumstances under which the beneficiary received 
the awards or other recognition, but in this instance the record says little about the awards. An in­
house award, from an employer to its own employee(s), does not inherently demonstrate that anyone 
other than that employer considers the rewarded work to be particularly significant. The record also 
fails to establish how unusual ( or routine) such awards are within the employing companies. 
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.P.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration ofthe Act, unpublished decisions are not similarly binding. 
The Board of Immigration Appeals (BIA) 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 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
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corroborative testimonial and documentary evidence, where available." Id. Iftestimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-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 
of 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 of those 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 of California, 14 I&N Dec. 190 (Reg'l. 
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 of 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 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 0 f the individual alien. On the basis 0 f 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.