dismissed EB-2 NIW Case: Nursing

identifying data deleted to 
prevent cleady unwarranted 
invasion of personal privacy 
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 
DATE: MAR 1 2 2012 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
AI] Jy{(} neL-
I . Perry Rhew 
U 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 nursing faculty member. The petitioner asserts that an exemption 
from the requirement of a job offer, and thus of a labor certification, is in the national interest of the 
United States. The director found that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree, but that the petitioner has not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and supporting 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) 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 director did not dispute that the petitioner 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, WIst 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 April 22, 2009, stating that he "is seeking a full-time 
position as a Nursing Faculty Member in which he would teach lecture and clinical courses and on­
campus labs to RN nursing students." At the time he filed the petition, the petitioner was a full-time 
registered nurse (RN) at Ohio, and a part-time nursing faculty 
member at Ohio. Although the petitioner already held a nursing 
faculty position when he filed the petition, he did not specify that he intended to remain at_ 
Rather, he repeatedly stated that his employer was "to be determined." 
Page 4 
Apart from the Form 1-140 petition and the required Form ETA-750B Statement of Qualifications, 
the petitioner's initial submission consisted of copies of the petitioner's diplomas, transcripts, and 
Ohio registered nursing license. Because there exists no blanket waiver for RNs or for nursing 
faculty members, this evidence does not, on its face, qualify the petitioner for the waiver. 
On November 29, 2009, the director issued a request for evidence, stating that the petitioner's initial 
submission did not establish the national scope of his occupation or demonstrate the petitioner's 
influence on the field of nursing. The petitioner's response included a statement from ~ 
••••••• the petitioner's law partner. _ acknowledged the passage in ..-.. 
indicating that "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." [d. at 217 n.3. _ 
stated: "it is important to distinguish [the petitioner's] teaching of professional adults who travel 
around the country to serve in the nursing profession from the hypothetical case of the elementary 
school teacher mentioned in dicta in the opinion." offered no substantive 
distinction, however, except to state that nursing instructors are not elementary school teachers. 
_ asserted that that the petitioner's occupation is national in scope because his students, 
upon graduation, will go on to work in other parts of the country. It remains that a nursing instructor 
can instruct only so many nurses, and that dispersing them around the country diffuses rather than 
magnifies the direct effect of the petitioner's work. The petitioner submitted no evidence that his 
intended duties would go beyond a single nursing school (for instance, through development of 
teaching materials or a standardized curriculum adopted by several such schools). 
The petitioner made no attempt to address the third prong of the _ national interest test by 
distinguishing the petitioner from others in his profession. Instead, _ noted that the 
Department of Labor (DOL) has pre-certified registered nurses under Schedule A. 
The petitioner does not seek a national interest waiver as a nurse (although he is one); he seeks the 
waiver to work as a nursing faculty member. Nothing in the regulations states or implies that, 
because nurses fall under Schedule A, Group 1, therefore those involved in training nurses are 
exempt from the statutory job offer requirement. 
The petitioner submitted background evidence about the nursing shortage, and _ asserted 
that "instructors of registered nurses . . . are the direct link to American efforts to eliminate this 
severe shortage of critical health care providers." did not explain how the efforts of one 
nursing instructor would significantly alleviate the shortage of nurses. 
If the worker shortage is as dire as counsel has claimed, and the petitioner is fully qualified for a 
faculty position at a nursing school, then the labor certification process should not present a 
significant impediment to the petitioner's hiring at such an institution. The AAO will not consider 
the hypothetical claim that approval of labor certification is such a foregone conclusion that there 
would be no point to actually pursuing it. The labor certification process exists as a means of 
addressing worker shortages, and such a shortage is grounds for approving a labor certification, not 
waiving it. passim. 
The AAO notes that, after_held that the statute did not create blanket waivers for any given 
occupation, Congress responded by passing new legislation to create such a blanket waiver for 
certain physicians. See section 203(b )(2)(B)(ii) of the Act. This congressional action is of particular 
note for two reasons. First, it affirmed the finding that the wording of section 203(b)(2)(B)(i) of the 
Act did not implicitly create any blanket waivers. If it did so, then section 203(b)(2)(B)(ii) of the 
Act would have been redundant. Second, Congress was obviously in a position to create blanket 
waivers for virtually any occupation, but it did not do so for nurses or nursing instructors, even 
though the statute that created section 203(b)(2)(B)(ii) of the Act was called the Nursing Relief for 
Disadvantaged Areas Act of 1999, Public Law 106-95. Existing immigration policy already makes 
special allowances for the nursing shortage. Those allowances do not imply that nursing instructors 
are, therefore, entitled to yet another benefit in the form of a national interest waiver. No blanket 
waiver exists for nursing instructors and the AAO has no authority to create one. 
The director denied the petition on April 5, 2010, stating that the petitioner had not established the 
national scope of his occupation, or that his "contributions in the field are of such unusual 
significance that the beneficiary merits the special benefit of a national interest waiver." The 
director concluded that "the available materials suggest that the petitioner's work as a Faculty 
member since October, 2008 and as a Registered Nurse since February, 2005 have gone largely 
unnoticed and have not demonstrated a national impact." 
On appeal, counsel asserts that _ requires "case-by-case" determinations on each application 
for the national interest waiver. When quoting the term "case-by-case" from counsel fails 
to consider the sentence in which that term appears: "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." [d. at 217. Counsel does not seek "case-by-case" consideration in this proceeding. 
Instead, counsel asserts that there is so desperate a shortage of nurses and nursing instructors that the 
petitioner deserves the waiver simply by virtue of being an RN and a nursing instructor. Prior to the 
appeal, counsel had made no effort to distinguish the petitioner from other nursing instructors. 
Counsel compares the present proceeding to an earlier AAO decision concerning a scientist who had 
developed "improved pregnancy tests for livestock." Counsel maintains that the petitioner compares 
favorably with the alien in the earlier proceeding. While the 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 cited decision is not a published 
precedent decision. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. 
Counsel then repeats various prior assertions about worker shortages and Schedule A classification 
for nurses. 
-Page 6 
In an effort to distinguish the petitioner from others in his field, counsel states: 
We believe the enclosed evidence shows that [the petitioner's] outstanding 
achievements and ability demonstrate that he can benefit the national interest to a 
substantially greater degree than someone with only the minimum qualifications of an 
MSN. 
Through his membership, his scholarly 
presentation and article for the betterment of nursing home residents, and his 
extensive professional training courses, [the petitioner] has demonstrated that he is 
more capable of benefitting the United States in this area than are instructors of only 
the "same minimum qualifications." 
The petitioner's proper opportunity to submit such evidence was in response to the request for 
evidence. Submitting this evidence on appeal cannot establish error by the director. See Matter of 
Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). The appeal will be adjudicated based on the record of proceeding before the director. 
Counsel cannot reasonably contend that the director should have taken this information into account, 
when the petitioner did not make the information available until the appellate stage. 
The AAO notes that the petitioner did not show that the factors listed above serve to distinguish him 
from other nursing instructors. The petitioner's "scholarly presentation and article" dates from his 
graduate studies at (Despite counsel's use of the term "article," there is no 
evidence of publ· submitted nothing to show that his presentation in any way 
influenced the practice of nursing, nursing education, oversight, or any other aspect of nursing at a 
national or even local level. 
Regarding the petitioner's claimed the petItIOner claimed this 
membership on his curriculum vitae, but that is simply a claim of membership, not evidence of 
membership. 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)). Even if the petitioner had documented his membership in he submitted 
no evidence to show that organization's membership requirements. Therefore, this claim has no 
evidentiary weight in this proceeding. 
Counsel refers to unspecified "extensive professional trammg courses." Special or unusual 
knowledge or training, while perhaps attractive to the prospective U.S. employer, does not inherently 
meet the national interest threshold. The issue of whether similarly-trained workers are available in 
the U.S. is an issue under the jurisdiction of the Department of Labor. _ 22 I&N Dec. 221. 
Taking and passing "professional training courses" does not automatically translate into impact or 
influence on the field of nursing or nursing instruction. The implicit claim that the petitioner's 
Page 7 
training puts him in a good position to make contributions in the future does not establish a prior 
history of such influence. 
For the above reasons, the AAO will affirm the director's finding that the petitioner failed to establish 
, the national scope of his occupation, as well as a record of influence or impact on his field. As is clear 
from a plain reading of the statute, it was not the intent of Congress that every person qualified to 
engage in a profession in the United States should be exempt from the requirement of a job offer based 
on national interest. Likewise, it does not appear to have been the intent of Congress to grant national 
interest waivers on the basis of the overall importance of a given profession, rather than on the merits of 
the individual alien. On the basis of the evidence submitted, the petitioner has not established that a 
waiver of the requirement of an approved labor certification will be in the national interest of the United 
States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.