dismissed EB-2 NIW Case: Nursing

identifying data deleted to 
prevent cleady 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. Citizenship 
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: 
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.P.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, 
~9JJ~t)VV 
"4 p~rry ~hew \j 
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 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 registered nurse. 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 did not establish that she qualifies for classification 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 of the United States. 
On appeal, the petitioner submits a brief from counsel. 
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 first issue is whether the petitioner qualifies for classification as a member of the professions 
holding an advanced degree. The U.S. Citizenship and Immigration Services (USCIS) regulation at 
8 C.P.R. § 204.5(k)(2) includes the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. 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 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
Page 3 
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 requirement for entry into the occupation. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(3)(i) states that, to show that the alien is a professional 
holding an advanced degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
The petitioner filed the Form 1-140 petition on August 13, 2009. On that form, the petitioner listed 
her occupation and job title as "registered nurse." In an accompanying statement, the petitioner 
described herself as a "Nursing and Infectious Disease Professional In the National Interest." 
The petitioner did not claim to hold an advanced degree. Instead, the petitioner claimed the 
equivalent of such a degree, by virtue of two Bachelor of Science degrees: one in medical 
technology (2002) and one in nursing (2005). Because the petitioner earned her B.S. in nursing less 
than five years before the petition's filing date, it is not possible for her to have accumulated five 
years of progressive post-baccalaureate experience in the specialty of nursing before the 2009 filing 
date. 
In a request for evidence (RFE) dated October 16, 2009, the director stated: 
The U.S. Department of Labor Occupational Outlook Handbook, 2008-09 Edition 
states that "the three major educational paths to registered nursing are a bachelor's 
degree, an associate's degree, and a diploma from an approved nursing program." As 
a result, the qualification of less than a bachelor's degree, categorizes the position of 
Registered Nurse under Section 203(b)(3)(A)(i) of the INA "Skilled Worker" and 
does not normally qualify under Section 203 (b)(2) of the INA "Member of 
Professional [sic] with Advanced Degree or Exceptional Ability." ... 
Please provide evidence that the position offered requires an advanced degree or 
exceptional ability. 
The director stated that the petitioner's "response must be received by this office by November 27, 
2009," and that the petitioner "must submit all of the evidence at one time. Submission of only part 
of the evidence requested will be considered a request for a decision based upon the record. No 
extension of the period allowed to submit evidence will be granted." These listed conditions come 
directly from the USCIS regulations at 8 C.F.R. §§ 103.2(b)(8)(iv) and (11). 
Page 4 
The petitioner's response included a copy of the envelope that had contained the RFE. The date on 
the postmark, October 22, 2009, was six days after the date on the RFE itself. Counsel correctly 
observed that the petitioner was, therefore, entitled to an additional six days to respond past the 
stated November 27, 2009 deadline. The director did not properly serve the RFE until the mailing 
date. See 8 C.F.R. § 103.5a(b). The director correctly accepted the petitioner's response, received 
November 30, 2009, as timely. 
The petitioner's response to the RFE included evidence that she holds two bachelor's degrees. This 
evidence does not address the director's concerns. If the petitioner's occupation does not qualify as 
a profession, then the petitioner's academic degrees are irrelevant. The petitioner's possession of 
those degrees does not imply that any of those degrees is the minimum requirement for entry into the 
occupation. The petitioner did not acknowledge or respond to the Department of Labor information 
cited by the director, indicating that many registered nurses do not hold at least a baccalaureate 
degree. This information, on its face, indicates that registered nursing does not meet the regulatory 
definition of a profession. The petitioner effectively conceded the point by offering no rebuttal 
whatsoever. 
In terms of whether or not the petitioner holds the equivalent of an advanced degree, counsel 
contended that the petitioner's education and experience, in the aggregate, amount to the functional 
equivalent of an advanced degree. Counsel repeats this claim on appeal, and the AAO will address it 
in that context. 
The record contains an "Amendment to Response to Request for Evidence," dated January 22,2010. 
Counsel claimed that this amendment "is ... timely filed for review pursuant [to] federal 
regulations," but did not cite to any regulations. The USCIS regulation at 8 C.F.R. § 103.2(b)(1l) 
reads, in part: "All requested materials must be submitted together at one time .... Submission of 
only some of the requested evidence will be considered a request for a decision on the record." The 
regulation at 8 C.F.R. § 103.2(b)(8)(iv) gives the director the discretion to determine the response 
time and specifies that "[a]dditional time to respond to a request for evidence ... may not be 
granted." Thus, "federal regulations" do not permit the petitioner to "amend" a previously submitted 
response to an RFE. The amendment arrived more than a month after the response deadline 
specified in the RFE (even after taking into account the necessary six-day adjustment for the delay in 
mailing). Therefore, the petitioner did not submit the amendment in compliance with "federal 
regulations." Rather, those regulations clearly rule out consideration of the amendment. 
The director denied the petition on January 22, 2010, based partly on the finding that the petitioner 
does not qualify as a member of the professions holding an advanced degree or its defined 
equivalent. The director also noted that the petitioner had not claimed eligibility as an alien of 
exceptional ability in the sciences, the arts or business, and therefore there was no need for a full 
discussion of that issue. 
On appeal, counsel states: 
Page 5 
It is not disputed that this RN does not have 10 years or even 5 years working solely in 
her profession as a qualified professional nurse. At the same time, she has 10 years of 
progressive working experience and real life experience to bring with her to the table. 
Given the blood in the alley, the fact that millions of American lives are now at stake, 
we think that the Director can read more into their interpretation of the applicable 
regulations. Five years of working experience should be added to the applicant's two 
Bachelor's degrees, coupled with experience in post-secondary education as a professor 
and working experience, to be found equivalent to an Eb2 advanced degree. Such a 
finding serves our national interest, and permits this applicant to proceed ahead with her 
claim to eligibility. 
Counsel does not explain how multiple baccalaureate degrees and the petitioner's experience as an 
instructor in microbiology (for less than two months) overcome the requirement for a degree above a 
baccalaureate or a baccalaureate plus five years of post-baccalaureate experience. The regulation at 
8 c.F.R. § 204.5(k)(3)(i)(B) calls for five years of progressive post-baccalaureate experience in the 
specialty, in this instance nursing. Experience in some other occupation is, by definition, not experience 
"in the specialty." Counsel cites no legal authority that allows USCIS to waive the requirement that the 
beneficiary hold an advanced degree or the equivalent as defined at 8 C.F.R. § 204.5(k)(2) for 
classification as a member of the professions holding an advanced degree. USCIS lacks the discretion 
to redefine what amounts to an advanced degree; rather, USCIS is bound by the regulatory definition at 
8 c.F.R. § 204.5(k)(2). USCIS may not utilize novel substantive or evidentiary requirements beyond 
those set forth at 8 C.F.R. § 204.5. Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 
2008). The national interest waiver that the petitioner seeks waives the alien employment certification 
process, not the requirements for classification under section 203(b )(2) of the Act. The waiver, by 
statute, is available only to members of the professions holding advanced degrees and aliens of 
exceptional ability in the sciences, the arts and business. 
Beyond the above points, the AAO notes that the petitioner never adequately addressed the 
director's earlier concerns about whether nursing is a qualifying profession. The AAO will affirm 
the director's finding that the petitioner has not shown that she qualifies as a member of the 
professions holding an advanced degree. 
The second and final issue concerns the petitioner's eligibility for a national interest waiver of the 
job offer requirement. The petitioner cannot qualify for the waiver without first showing that she 
qualifies for the underlying immigrant classification. Nevertheless, in the interest of clarity and 
thoroughness, the AAO will consider the petitioner's waiver claim here. 
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, WIst Cong., 1st Sess., 11 (1989). 
Page 6 
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 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 te,rm "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. 
In a statement that accompanied the initial filing, the petitioner stated: 
Infectious disease remains a threat to health care world-wide, including to Americans . 
. . . The present pandemic caused by the HINI virus, commonly known as 'Swine 
Flu' has proven this point. ... It affected millions of individuals and cost the lives of 
hundreds of people. It is my calling and objective to offer my services in this great 
nation to the American people. To achieve my objectives, I need to work with 
clinicians, surgeons, and patients in medical centers, research centers, laboratories 
and clinical forums. I can then provide to these interested parties my expertise with 
state-of-the-art infectious disease diagnostic techniques based upon my combined 
background in both medical technology (microbiology/virology/parasitology/ 
-Page 7 
mycology) and professional nursing, and provide insights that I have learned and 
experienced in my career. 
The petitioner then discussed her own credentials and offered general assertions about the 
importance of fighting infectious disease. The petitioner stated: "Labor certification process, even 
with Schedule A, is not a viable option at this time, and would require a delay of 26 months or 
longer." The petitioner submitted extensive documentation of her training and certification, as well 
as materials regarding a shortage of nurses in the United States. 
In the October 2009 RFE, the director acknowledged "the proposed employment has substantial 
intrinsic merit," and instructed the petitioner to establish the national scope of her occupation. The 
director also asked for evidence that the petitioner "served the national interest to a substantially 
greater extent than the majority of [her] peers." The director noted that the petitioner had submitted 
considerable background information about her occupation, but "the record lacks evidence of the 
impact [the petitioner], personally, [has] had on the field of nursing." 
In response to the RFE, counsel discussed the nursing shortage and stated that the present petition is 
"much more like that of physicians who are willing to serve in health care shortage areas." Counsel 
referred, here, to section 203(b)(2)(B)(ii) of the Act, which created blanket waivers for certain 
physicians practicing in medically underserved areas. The USCIS regulations at 8 c.F.R. § 245.12 
implemented this provision of the Act. 
Congress is presumed to be aware of existing administrative and judicial interpretation of statute 
when it reenacts a statute. See Lorillard v. Pons, 434 U.S. 575, 580 (1978). In this instance, 
Congress's awareness of NYSDOT is a matter not of presumption, but of demonstrable fact. 
Congress enacted section 203(b)(2)(B)(ii) of the Act in direct response to the 1998 NYSDOT 
precedent decision. Congress, at that time, could have taken any number of actions to limit, modify, 
or completely reverse the precedent decision, including applying the waiver to nurses and exempting 
them from meeting the professional and degree requirements of section 203(b )(2) of the 
Act. Instead, Congress let the decision stand, apart from a limited exception for certain physicians 
working in shortage areas, as described in section 203(b)(2)(B)(ii) of the Act. Counsel cited several 
recent laws relating to nurses, none of which amend the national interest waiver provisions set forth 
at section 203(b )(2) of the Act. Because Congress has made no further statutory changes in the 
decade since NYSDOT, the AAO can presume that Congress has no further objection to the 
precedent decision. In short, counsel's attempt to link nursing to the physician waiver by analogy 
fails, because Congress could have extended the waiver to nurses, but did not do so. 
Counsel cited the Nursing Relief for Disadvantaged Areas Act of 1999, P.L. 105-95, 113 Stat. 1312 
(Nov. 12, 1999) as an example of a Congressional mandate that the admission of nurses is in the 
national interest. The Act of 1999 only created a nonimmigrant classification for nurses. Notably, 
this is the same legislation that made the national interest waiver available to physicians serving in 
underserved areas. The statute did not, however, mention nurses in the context of the national 
interest waiver despite expressly amending that provision for physicians (and having the word 
"Nursing" in the name of the legislation). 
Page 8 
Counsel cited Francis v. Reno, 269 F. 2d 162-170-71 (3rd Cir. 2001), for the proposition that USCIS 
must interpret the relevant statutes in favor of the beneficiary. The statute at issue is section 
203(b )(2) of the Act. This statute simply cannot be interpreted in any logical way as supporting an 
approval of the petition, most significantly because the beneficiary does not qualify as a member of 
the professions, admittedly does not possess an advanced degree or the equivalent as defined at 
8 C.F.R. § 204.5(k)(2) and is not an alien of exceptional ability. As stated above, Congress permits 
USCIS to waive the alien employment certification process in the national interest, not the other 
requirements for eligibility for the classification. Section 203(b )(2)(B )(i) of the Act. 
In the January 22, 2010 denial notice, the director noted the petitioner's heavy emphasis on "the 
current shortage of nurses." The director also noted: "Congress has already provided in section 
203(b)(2), (3)(A)(i) and (ii) of the Act to make provisions for Scheduled [sic] A Group I blanket 
labor certifications for permanent positions in the registered nurse or physical therapy occupations." 
The director cited NYSDOT s finding that "the job offer waiver based on national interest is not 
warranted solely for the purpose of ameliorating a local labor shortage, because the labor 
certification process is already in place to address such shortages." [d. at 218. 
On appeal, counsel notes that an employer has filed a new petition on the petitioner's behalf, 
classifying her as a skilled worker under section 203(b)(3) of the Act, with Schedule A, Group I 
certification. filed Form 1-140, with receipt number ••••• 
_ on The director approved the petition on January 14, 2010. The one-
month turnaround refutes the petitioner's claim that a petition under "Schedule A, is not a viable 
option at this time, and would require a delay of 26 months or longer." The AAO notes that the 
approval of this petition was the focus of the petitioner's attempt to amend the RFE response. By 
the time the petitioner mailed that amendment, the director had already denied the petition. 
The new petition is, administratively, a separate matter from the present proceeding. Approval of a 
petition with Schedule A, Group I certification does not in any way imply eligibility for the national 
interest waiver. Petitions under Schedule A require a job offer, whereas the national interest waiver 
waives the job offer, making the two petition types mutually exclusive; it is impossible to have a 
national interest waiver and Schedule A certification within the same proceeding. The approval of 
the new petition shows only that USCIS is capable of expeditiously approving a petition for a 
Schedule A nurse. 
Claiming that the petitioner's work is national in scope, counsel states: 
National scope of benefit in this matter: We are now facing a major issue in medical 
ethics in the United States: Who will receive health and nursing care while facing 
death from HINl? Due to the crisis and shortage, will only the wealthy receive 
adequate nursing care? Will the government be forced to ration nursing care for only 
the most compelling needs, like what has taken place in the organ transplant area. 
The growing shortage will mean that every able bodied nurse must be supported, 
permitted to work and protected to save us from this ongoing crises. In our great 
Page 9 
nation, we seek to treat all patients and individuals equally, with dignity, and the best 
medical and rehabilitative care available. This too is now in the national interest. 
Counsel states: "We dispute the conclusions of the Director that one individual who works in public 
health cannot have a national impact." The director did not make such a conclusion. One could be 
an "individual who works in public health" in a capacity other than that of a registered nurse. 
Counsel asserts that "millions of American lives are now at stake" from the HIN1 pandemic and 
other infectious diseases, but does not explain how the actions of one nurse would significantly 
affect the toll from the disease. 
As the director noted in the decision, NYSDOT provides the following examples of occupations that 
do not provide benefits that are national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national 
interest, the impact of a single schoolteacher in one elementary school would not be 
in the national interest for purposes of waiving the job offer requirement of section 
203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sufficiently in 
the national interest for purposes of this provision of the Act. 
Id. at 22 I&N Dec. at 217 n.3. Consistent with this analysis, the impact of a single nurse at one 
hospital or other health care facility would be so attenuated at the national level as to be negligible. 
The same reasoning also applies to medical technologists, so counsel's observation that the 
petitioner also holds that qualification is without effect. The AAO will affirm the director's finding 
that the petitioner's occupation lacks national 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. This final question is 
"specific to the alien." [d. at 217,222-23. In an introductory statement, counsel asserts that the 
petitioner's "unique qualifications, background, training and importance meet the standards set by 
the New York Department of Transportation precedent decision." The accompanying appellate 
brief, however, does not elaborate upon this point. By failing to support this claim on appeal, 
counsel has effectively abandoned it. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) 
(per curiam); Irwin v. Hawk, 40 F.3d 347, 347 n. 1 (11th Cir. 1994) (per curiam); Tedder v. F.M. C. 
Corp., 590 F.2d 115, 117 (5th Cir. 1979) (per curiam) (deeming abandoned an issue raised in the 
statement of issues but not anywhere else in the brief). 
Despite the clear and unambiguous language that the ultimate question is the beneficiary's individual 
merits, the body of counsel's brief rests on the assertion that the sheer importance of alleviating the 
nursing shortage justifies a waiver of the alien employment certification process in the national 
interest, even when (as here) the petitioner is already the beneficiary of an approved petition under 
other provisions enacted specifically for nurses. 
Page 10 
NYSDOT, 22 I&N Dec. at 215 et seq. states and then reiterates several times that a shortage is not a 
basis for the national interest waiver of the process designed to test the labor market. First, the decision 
states: 
With regard to the unavailability of qualified U.S. workers, the job offer waiver based 
on the national interest is not warranted solely for the purpose of ameliorating a local 
labor shortage, because the labor certification process is already in place to address such 
shortages. 
Id. at 218. 
In response to a claim of a national shortage, the decision explains that this assertion "should be tested 
through the labor certification process." Id. at 220. The decision further states that the issue of a 
shortage is not even within USCIS' jurisdiction. Specifically, the decision states: "The issue of whether 
similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the Department of 
Labor." Id. at 221. The decision continues: 
A number of the witnesses in this case assert that engineers with the beneficiary's 
qualifications are in short supply, yet are desperately needed because of the deterioration 
of U.S. bridges. The petitioner has never clearly explained why the job offer and thus 
the labor certification requirement should be waived. Given the asserted shortage of 
qualified engineers with the requisite training, and the evidence existence of an offer of 
permanent employment, the situation appears to correspond closely to the very situation 
that the labor certification process was designed to address. 
Id. at 222. 
Counsel is essentially proposing a blanket waiver for all nurses in the second preference category 
(despite the fact that nurses do not qualify as members of a profession) due to the severity of the 
shortage at the national level and the importance of the occupation. NYSDOT, 22 I&N Dec. at 217, 
220, 223, states: 
A petitioner cannot establish qualification for a national interest waiver based solely 
on the importance of the alien's occupation. It is the position of the Service to grant 
national interest waivers on a case by case basis, rather than to establish blanket 
waivers for entire fields of specialization. 
Id. at 217. The decision continues: 
The employer's assertions regarding the overall importance of an alien's area of 
expertise cannot suffice, however, to establish eligibility for a national interest 
waiver. The issue in this case is not whether proper bridge maintenance is in the 
national interest, but rather whether this particular beneficiary, to a greater extent than 
-Page 11 
U.S. workers having the same minimum qualifications, plays a significant role in the 
preservation and construction of bridges. 
[d. at 220. The decision concludes: 
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 as they relate to the job to be performed. 
Counsel notes repeatedly that the beneficiary is a qualified nurse. Objective qualifications that are 
necessary for the performance of the occupation can be articulated in an application for alien 
employment certification; the fact that the alien is qualified for the job does not warrant a waiver of 
the alien employment certification requirement. [d. at 220-21. 
A waiver of the alien employment certification process would serve no purpose in this matter. 
Counsel acknowledges that DOL has already designated nurses as an occupation in which "there are 
not sufficient United States workers who are able, willing, qualified, and available," defined as 
Schedule A Group I. 20 C.F.R. § 656.5(a)(2). An employer seeking an alien employment 
certification for a Schedule A occupation may already apply for alien employment certification 
directly with USCIS rather than DOL pursuant to 20 c.F.R. § 656.15. Moreover, as noted by 
counsel, the USCIS Ombudsman has already recommended that USCIS prioritize Schedule A 
adjustment applications for nurses. 
Despite the existence of the expedited blanket waiver under Schedule A, Group I, counsel asserts 
that this existing process is insufficient to alleviate the national shortage of nurses because the visa 
numbers are oversubscribed. The problem, however, is not that the Schedule A designation process 
itself causes any delay or otherwise takes longer to adjudicate than a request for a waiver of that 
process, both filed with USCIS. USCIS approved petition in a month. 
Rather, the delay to which counsel must refer is the oversubscription of third preference visas, 
especially in the country in which the beneficiary was born. The national interest waiver, however, 
only waives the alien employment certification process. Section 203(b)(2)(B)(i) of the Act. It does 
not and cannot override backlogs in immigrant visa numbers, and it does not expedite the processing 
time for an adjustment application (or increase such an application's chances of approval). In this 
case the alien employment certification process for which the petitioner seeks a waiver is the already 
expedited Schedule A, Group I process. Counsel has not demonstrated how waiving that process is 
in the national interest. Specifically, waiving the process can only benefit the beneficiary if USCIS 
also waives the other requirements set forth in section 203(b )(2), that the beneficiary be a member of 
a profession, possess an advanced degree or qualify as an alien of exception ability. USCIS does not 
have the authority to redefine the classifications that Congress mandated, even if alleged to be in the 
national interest. The oversubscription of third preference visas and its impact on the nursing 
shortage, assuming an impact exists, is a problem that only Congress can address beyond what the 
USCIS Ombudsman has recommended. 
, . 
-Page 12 
Ultimately, eligibility for the waiver must rest with the alien's own qualifications rather than with 
the position sought. In other words, USeIS generally does not accept the contention that a given 
project is so important that any alien qualified to work on this project must also qualify for a national 
interest waiver. 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. [d. at 219, n. 6. The petitioner has not documented that she has a past 
history of achievement with some degree of influence on the field as a whole. 
For the above reasons, the AAO affirms the director's finding that the petitioner has not established 
eligibility for the national interest waiver. The AAO has already explained why the petitioner has, 
likewise, failed to establish eligibility for the underlying classification as a member of the 
professions holding an advanced degree or its defined equivalent. 
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.