dismissed EB-2 NIW Case: Optical Communications

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. s. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: 
EAC 03 266 55964 AUo 3 1 2006 
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. 9 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Off~ce in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
\3 aobert P. Wiernann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as the vice president of marketing at CoreOptics. The petitioner asserts that an exemption &om 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. 
Section 203(b) of the Act states in pertinent part that: 
(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, 
lOlst Cong., 1st Sess., 11 (1989). 
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 Citizenship and Immigration Services (CIS)] 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 &om, 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, 22 I&N Dec. 215 (Cornrn. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown 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. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established 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 inclusion of the term "prospective" is used here 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. 
Counsel describes the petitioner's work and its significance: 
The beneficiary has made significant contributions to the field of optical communications and 
clearly presents a case superior to that of the petitioner in New York State Department of 
Transportation. . . . 
The proposed beneficiary's ongoing work and research is in providing the necessary optical 
components and equipment for the Department of Defense's Global Information Grid 
Bandwidth Expansion Project. . . . The mproject will allow the U.S. 
military to transmit more data [over] much longer distances with greater security. . . . As Vice 
President of ~arketin~ [the petitioner] plays a crucial role in the deployment 
of mission critical equipment for Bproject. manufactures optical 
transponders for use in optical line cards. Optical line cards function as the ingress and 
egress points on an optical network and are fundamental for the successful expansion of the 
existing communication network. project is currently in the Request for 
Proposal stage and eamed up witho develop a product 
offering that integrates I optical transponders. [The petitioner] is the key contact 
and main technical liaison for the integration efforts. His knowledge of the optical 
technolorn market both from a business sense as well as a technical sense is essential to the 
Page 4 
Counsel states that the petitioner "has obtained a series of letters from international experts in his field of 
specialization, attesting to his outstanding abilities. . . . These authors have prepared independent expert 
evaluations of [the petitioner's] accomplishments, contributions, and reputation for the purposes of this 
petition." 
The letter contains unfinished, unsigned templates of three witness letters, along with signed, finished 
versions. For instance, one letter, to be signed by "Ario Biggatini," reads in part: 
[To be placed on Cisco Stationary (sic)] 
I am in-an excellent position to comment on the application on [the petitioner's] behalf. I 
currently serve as the Senior Manager, Product Qualification for Cisco Systems. I have know 
[sic] [the petitioner] since . [Please elaborate on the nature of your knowledge of 
[the petitioner's] skills]. Through this work, [the petitioner] has demonstrated to me that he 
possesses advanced capabilities in the area of optical telecommunications with particular 
emphasis on .... 
[The petitioner] has produbed as series [sic] of achievements in the field of optical 
telecommunications and tunable lasers over the course of his career, which have gained him 
acclaim, and serve to distinguish him from the vast majority of experts in his area of 
specialization. . . . 
In my estimation, [the petitioner] has risen to the top of his profession and should be 
recognized as such through the approval of this petition. 
(Emphasis in original.) The record also contains templates of letters "To be placed on IOLON letterhead" for 
the signature of company president and "To be placed on Lucent letterhead" for the signature 
of supply chain manager All three individuals have signed letters incorporating the 
hese misspellings are another indication (beyond the bracketed, bold-type instructions) that 
the witnesses did not write these letters. 
As to the claimed independence of the witnesses, the petitioner was forme 
name is routinely spelled without capitalization), where he worked under 
"the past two years collaborating [with the petitioner] on a joint develo 
has known the petitioner "since 1995" and that the petitioner "has been working very closely with our 
engineers." 
the petitioner's work at iolon, and the assessment that the petitioner "ranks at or near the very top of the list of 
Page 5 
individuals that I have encountered" is taken straight from the template.states, evidently in his 
own words, that the petitioner "has been very instrumental in defining the specification . . . in development of 
the tunable optical devices and open tolerant optical modules and systems for our next generation transport 
platform." 
Ario Bigattini has added the most to his template letter, stating: 
As [the petitioner] has pointed out in his publications on the topic of tolerant networks, the 
first important application of widely tunable lasers is inventory reduction and sparing. . . . 
The projected saving and economic impact for telecommunication industry will be in the 
hundreds of millions of dollars. 
In his network studies, [the petitioner] further discovered that, while applications in inventory 
reduction will drive much of the initial demand for tunable lasers, the real revolution will 
come when they are applied to make optical networks more flexible, secure and tolerant. . . . 
[The petitioner] has made significant contributions in promoting the state of the art of tunable 
laser technologies and system applications. . . . [The petitioner] has also made important 
contributions in the standardization of OIF (Optical Internetworking Forum) Small-Forrn- 
Factor Multi-Source Agreement common interface for tunable lasers, his idea such as Small 
Form Factor footprint, pluggable connector and pin out, etc., presented at an OIF meeting has 
been widely accepted and implemented in Tunable Laser Implementation Agreement 
(OIF2002.210.04) as the new industry standard. 
The most detailed letter in the initial filing is from managing director of- 
describes project and its goal of ensuring that "the American military has . . . the 
best communications available." describes role in the project: 
evelops and manufactures modules and subsystems for ultra high-speed optical 
networking solutions for the telecommunications and the information technology industry. 
current portfolio includes advanced 10 and 40 Giga bits per second transponders 
for the Internet Protocol (IP) Routers as well as the Metropolitan optical 
transport systems. 
advanced transponder solutions will be integrated into optical line cards of major 
companies such as - 
Coreoptics will play an important role in ~l-~roject through our partnering efforts. 
At the vresent time, we have vartnered with Cisco and Lucent Technologies in their resvonses - 
to ~&uest for'~ro~osa1. Specifically, our products will be included'in the 
product offering of Cisco and [The petitioner] will play a critical role 
in the integration of our product within the product suite offered by the winner(s) of the RFP. 
Page 6 
[The petitioner's] expertise with optical networks an telecommunications products is critical 
to success as a partner in the d 
The description of the Request for Proposal indicates that no "wimer(s)" had yet been chosen at the time of 
the above letter. Therefore, it appears to be mere speculation that 
- 
partner would be involved in 
at all. The record contains no documentary evi ence to s ow that, as of the filing date, 
was part of mproject. The waiver request appears to be predicated, in large part, on the P 
expectation that ould eventually be involved with the project through its partnerships with one 
or more larger companies. 
The overall importance of importance of the project 
is not equal to the project." Whatever vested 
interes may have in participating in th it does not follow that it is in the 
national interest to ensure tha- rather than some other company, provides the needed transponders 
for the project . 
Counsel asserts that the petitioner's "ongoing work in this area benefits the nation as a whole because the 
applications of his knowledge will permit military personnel to communicate in a more efficient and precise 
manner." From the above description, however, it does not appear to be certain that will 
participate in theproject at all. c at her, is cooperating with larger companies in a 
"Request for Proposal." The submission includes no documentary evidence to show tha-was 
involved (rather than hoped to be involved) in th- project at the with 
one or more companies that had not yet been awarded contracts related to roject is a rather 
tenuous basis for a national interest waiver claim. 
On July 1 1, 2005, the director issued a request for evidence (RFE), stating: 
Although the equipment designed b- may benefit the nation, your individual 
contribution does not appear to. Your particular job does not result in the development and 
design of new products that can be used by the military, etc. Your job is only to act as the 
intermediary between your company, other companies, and the Department of Defense. . . . 
The record does not clearly show that you are the initial or primary motivator behind the 
Ln response, the petitioner submits additional letters and other materials. president of 
tates: 
[The petitioner] is a recognized national expert in the field of tunable optical lasers and 
networks and his role in the company combines his technical expertise with his business 
acumen, making him virtually irreplaceable. . . . His job responsibilities for Coreoptics 
include the following: 
Page 7 
--Definition of technical specification, marketing requirements and development of 
commercial specifications for CoreOptics product platforms for all Government and 
Commercial applications. . . . 
--Development and execution of CoreOptics North American product development 
and customer support strategies. . . . 
--Establishment of strategic technical and commercial alliance programs with major 
subsystems, components and system provider companies to deliver value-add 
services and products for optical networking applications 
--Establishment and leading of multi-disciplinary Sales and Marketing and 
Application Engineering organizations for CoreOptics product platforms 
--Development and execution [of] CoreOptics public, investor relations and branding 
initiatives via a nation-wide marketing campaign, public presentations and articles at 
trade shows and technology seminars. . . . 
While [the petitioner's] expertise and contributions undoubtedly benefit CoreOptics greatly, 
CoreOptics is an important subcontractor for major US based telecommunications systems 
manufacturers that provide equipment for the GIG-BE and various DOD projects. [The 
petitioner] plays a major role in making sure that CoreOptics meets its contract obligations. 
. . . [The petitioner] has primary responsibility for making sure that both the interests of our 
customers' projects and the company are served. 
Moreover, [the petitioner] has been very instrumental working with Lucent Technologies in 
defining the specifications for development of tunable optical devices for the Lambda Xtreme 
transport platform. . . . This Lucent flagship product is in wide deployment in the U.S. by 
many service providers. . . . 
Products like the Lambda Xtreme transport platform help the U.S. to maintain a competitive 
infrastructure, without which the country could fall behind in offering sufficient capacity and 
high speed data transmission for government, education and business. 
The overall importance of the telecommunications industry is not in dispute. It does not necessarily follow, 
however, that every marketing executive of every subcontractor in that industry qualifies for a national 
interest waiver. The above letter indicates that the position filled by the petitioner is important for the 
interests of CoreOptics and its clients, but it does not persuasively show that the industry would suffer or drop 
behind foreign competitors if someone other than the petitioner occupied that position. 
1so states: would have been more than happy to act as his sponsor on the 
immigrant petition, however it was our understanding, based on advice from counsel, that it was not 
necessary, nor required for us to do so under the law." 
member of technical staff at Lucent Technologies, states that the petitioner "has been 
very instrumental in defining the specification . . . for the Lambda Xtreme transport platform," and that the 
petitioner "possesses outstanding technical and business abilities distinguishing him from the other highly 
qualified marketing managers in the field of Tunable lasers and EDC. [The petitioner's] work focus is to 
vastly improve the quality, speed and reliability while reducing the cost of optical network communications 
throughout the United States and the rest of the world." 
director of optical systems at Infinera hc., who "worked with [the petitioner] while at 
Corvis Corporation," states that the petitioner's "technical role and his solid contributions in defining the 
product specification of optical platforms and subsystems developed in our industry has enabled the building 
of. . . next generation efficient, reliable, high performance and cost effective optical networks for government 
and commercial applications." These new letters establish the high opinions of clients and collaborators, but 
do not demonstrate the petitioner's wider reputation or impact within the field. We note that neither Dr. 
- any mention their respective letters, a significant omission given 
the heavy emphasis that counsel had previously placed on project. 
The petitioner submits copies of published articles, presentation materials, and documentation regarding 
These materials establish that the petitioner is active in his field and that he possesses 
detailed technical knowledge in addition to general business skills, but they do not establish that it is in the 
national interest to waive the job offerllabor certification requirement. 
The director denied the petition on August 15, 2005. The director notedstatement that the 
company would have filed a petition on the petitioner's behalf, but refrained "on advice from counsel." The 
director stated: "The national interest waiver was not intended simply as a means for employers or self- 
petitioning beneficiaries to avoid the labor certification process," an assertion derived from Matter of New 
York State Dept. of Transportation at 223. The director stated that a list of the petitioner's responsibilities and 
duties is not strong evidence of eligibility. The director also noted the petitioner's submission of partially 
completed templates for three of the four initial witness letters, and stated that these templates diminish the 
credibility of those letters. 
On appeal, counsel states: "The development and implementation of the U.S. DOD's - 
communications infrastructure project is clearly both in the national interest and national in 
petitioner's] current employer produces transponder line cards which are critical to 
project. As such, the national interests of the U.S. outweigh the need for Labor Certification." Elsewhere on 
appeal, counsel refers to the petitioner's "key role within the company in continuing to make sure it meets its 
commitments under the critical DOD project." The record contains no documentation from the 
Department of Defense to establish the extent (or the existence) "commitments under the 
critical roject." Being an executive for a subcontractor working with a defense contractor is 
not prima facie grounds for a waiver. Counsel asserts that the petitioner is essential to the project because, 
among other reasons, he "is a Masters level engineer," an educational requirement that could be expressed on 
an application for a labor certification. 
Counsel states that the director "improperly discounted letters . . . based on draft versions which were also 
submitted. CIS did not contact the authors. Also, there was no opportunity given to rebut the conclusion 
regarding the letters." The AAO has addressed this concern by considering the content of these letters that 
can reasonably be attributed to the individuals who signed them. The preliminary versions of the letters were 
not merely "draft versions" prepared by the signers; rather, it is obvious that they were templates prepared for 
the signers. This is clear because of the bracketed, bold-type instructions to insert specific personal 
information, and because none of the "draft versions" feature correct spellings of the witnesses' names. The 
regulation at 8 C.F.R. 5 103.2(b)(8) requires the director to issue an RFE if required initial evidence is 
missing from the record, and 8 C.F.R. 103.2(b)(16)(i) requires the director to advise the petitioner of 
derogatory evidence that is unknown to the petitioner. Neither of these regulations applies to the templates. 
Once a petitioner has submitted evidence, no regulation requires the director to warn the petitioner in advance 
of conclusions to be drawn from that evidence. The petitioner's opportunity "to rebut the conclusion" is the 
appeal itself, but the petitioner offers no such rebuttal; counsel merely protests the lack of an earlier 
opportunity to do so. 
Counsel also states that the director "failed to address or discuss the evidence submitted in response to the 
RFE. Specifically, the denial failed to consider additional recommendation letters, and documentation of his 
technical presentations, seminars and documents authored." The AAO has addressed these additional letters. 
As for the technical documents, the director acknowledged the petitioner's technical expertise in his field, but 
asserted that such knowledge can be articulated on a labor certification and therefore is not a strong basis for a 
waiver. 
We note that the petitioner is the beneficiary of a new petition, filed with an approved labor certification in 
March 2006. The new petition has been approved, with a priority date of October 2005 (based on the labor 
certification). Therefore, the petitioner, in this proceeding, seeks an exemption from a requirement that has 
now been met. 
As is clear fiom 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 fiom 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. 5 1361. 
The petitioner has not sustained that burden. This denial is without prejudice to ongoing adjustment proceedings 
resulting fi-om the petition, with labor certification, recently approved on the alien's behalf. 
ORDER: The appeal is dismissed.