dismissed EB-2 NIW Case: Small Business Development

, 0 ~ ., /'1 .. I' 
Plffil.1C COpy 
DATE: JUN 2 5 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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. § l1S3(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 oITice 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 AAO inappropriately applied the law in reaching its decision, or you bave additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form I-290B, Notice of Appeal 
or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(J)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~Gv----' 
> Perry Rhew \J 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas 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 under 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 the director of New York City (NYC) Business Solutions, Lower 
Manhattan Center, for the Structured Employment Economic Development Corporation (Seedco). 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, a witness letter, 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, IOlst Cong., 1st Sess., 11 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990, published al 
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 benetit" 
[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 a/New York State Dept. a/Transportation, 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 tbe 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 USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" 
as "a degree of expertise signiticantly 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 January 28, 2011. In an accompanying introductory 
statement, counsel described the petitioner's work: 
[The petitioner] works in the field of small business development. He provides 
business counseling and conducts workshops in areas such as business planning, 
human resources, and operations. [The petitioner] gives assistance in matters such as 
recruitment, financing, training, M/WBE (Minority and Women Owned Business) 
certification, permits and licensing and business launch. He connects businesses to 
various financial, technical, and employment services, and informs business owners 
Page 4 
how to access incentives. [The petitioner's] work is critical for small businesses to 
start, operate, and grow. He also assists in neighborhood/community economic 
initiatives and has been actively involved in New York City's Chinatown 
communities. [The petitioner] has helped many entrepreneurs, with a majority 
ofthem engaged in the restaurant industry. 
[The petitioner] works for the Structured Employment Economic Development 
Corporation ("Seedco") and was recently promoted as Director of the Seedco­
operated New York City Business Solutions Lower Manhattan Center. Secdco is 
a national non-profit organization founded in 1986, and works with various networks 
of local partner organizations to offer financial and technical assistance and 
management support for community-building efforts throughout the U.S .... 
NYC Business Solutions is a government agency under the Department of Small 
Business Services (DSBS). NYC Business Solutions helps businesses start, operate 
and expand in New York City. It offers its services free of charge and works to 
stimulate business creation .... 
[The petitioner] plays a crucial role to small business development. He creates 
programs aimed to help budding entrepreneurs and business owners launch 
and/or expand their business. He knocks down barriers to entry, providing 
necessary information and assists with securing financing to get businesses off 
the ground .... 
[The petitioner] is a leader in U.S. small business development. 
stimulates business creation resulting [in] an improved economy 
creation. 
His work 
and job 
(Emphasis in original.) The petitioner submitted documentation relating to instructional programs 
offered by Seedco and/or DSBS, such as Restaurant Management Boot Camp and No More Kitchen 
Drama. Many of these materials are in the Chinese language. The petitioner also showed that he 
had spoken to various business classes organized by the Chinatown Manpower Project. 
The petitioner submitted 15 letters from witnesses whom counsel called "leading individuals 
working in the field of small business development." The witnesses devoted considerable space to 
general discussions about the importance of small businesses. Because that overall issue is not in 
dispute, the AAO will focus on the witnesses' comments about the petitioner specifically. Also. 
because many witnesses make similar claims, the AAO will discuss representative examples rather 
than every submitted letter. 
stated: 
_ . . works with various networks of local partner organizations to offer 
financial and technical assistance and management support for community-building 
Page 5 
efforts of non-profit organizations and small businesses in targeted disadvantaged 
communities throughout the U.S .... We are a national nonprofit organization and 
currently lead initiatives in 15 states ... plus Washington DC with offices in seven 
states. 
For the past six (6) years,_ has been working with the NYC Business Solutions 
... [which] is a program of New York City's Department of Small Business Services 
(SBS) .... 
From my interactions with [the petitioner] and my personal observations of his work. 
I can say that he is highly effective and very passionate about his work. [The 
petitioner] develops and manages the only restaurant/food business centered 
assistance program in the New York City public service system .... From 2005-2010 
he has assisted more than 500 food business clients to help them start, operate and 
expand their businesses. . . . Additionally, [the petitioner] also assists in the 
development of_ Neighborhood Economic Initiatives by working in ... New 
York City's Chinatown communities. He offers business counseling and conducts 
workshops in the areas of business planning and financing. [The petitioner] has 
served more than 200 Chinese speaking only clients since 2005 to help them better 
manage their businesses . 
. . . He creates educational materials, conducts seminars and organizes events to 
inform small business owners of their responsibilities to their employees. From 2007 
to 2009, [the petitioner] single handedly produced and managed the workshop series, 
No More Kitchen Drama, to explore job quality for the restaurant industry .... Other 
Seed co offices in the United States have implemented [the petitioner's] policies and 
work, making his influence national in scope. In particular, our office in New 
Orleans where the restaurant industry is key to employment has utilized [the 
petitioner's] training materials. 
was formerly senior vice 
stated that the petitioner 
"helped to construct a robust business support program for the food/restaurant industry. These 
programs have been replicated in other Centers." Mr._ referred to Restaurant Management 
Boot Camp as the petitioner's program, implying that the petitioner created it, and stated: "From 
2005 to 2010, [the petitioner] has helped to launch or expand more than 100 small businesses .. 
[and] helped clients to hire 200 new employees." 
Numerous witnesses have provided rough numbers of clients whom the petitioner has assisted, but 
these numbers vary from witness to witness. For example, the petitioner's 
former colleague at NYC Business Solutions who is now a portfolio manager for the Grow America 
Fund, stated that the "has since 2005 helped over 500 entrepreneurs and small business 
owners." for the New York State Restaurant Association. 
stated that the petitioner "has assisted nearly 1,400 New York City based foodservice establishments 
Page 6 
since 2005." These numbers do not exactly conflict - a number can be both "over 500" and "nearly 
1,400" - but their range demonstrates that at least some writers lack familiarity with the petitioner's 
specific accomplishments. The only documentation provided in this regard is a list of the 
petitioner's 2008-2010 clients who speak only Chinese. The list includes 181 entries. 
A number of witnesses praised the petitioner's creation of programs such as Restaurant Management 
Boot Camp and his work assisting clients to obtain loans, comply with regulations, and take other 
to start or maintain their businesses. these witnesses are restaurateurs such 
stated: "[the 
petitioner] has helped me develop my restaurant business in so many ways." 
State of New York, asserted: "For the last six years 
[the petitioner] has helped over 2000 entrepreneurs start up or expand their businesses," and that the 
petitioner's "[p]rograms ... have also served as models for business growth nationwide." _ 
_ cited no source for this information, and did not claim direct knowledge ot_ activities 
outside of New York. 
The petitioner submitted translated copies of Chinese-language newspaper articles reporting on 
various aspects of the petitioner's work in Lower Manhattan, and an English-language article from 
the New York Times that identified the petitioner as one of the driving forces behind Restaurant 
Management Boot Camp. The petitioner also submitted copies of reviews and other articles 
concerning restaurants whose owners credit the petitioner with providing invaluable assistance. 
On July 5, 2011, the director issued a request for evidence, instructing the petitioner to establish that 
"the impact of the beneficiary's activities will be national in scope" and that he has "a past record of 
specific prior achievement with some degree of influence on [his] field as a whole." The director 
stated that the initial submissions, including letters, indicated that the petitioner's work primarily 
benefited individual businesses in one city. The director acknowledged witnesses' claims that 
Seedco had used the petitioner's work as a model in other states, but the director found "[t]here is no 
evidence in the record to substantiate this claim." 
In response, the petitioner asserted that _ "is curren~ and servicing 
communities nationwide" (emphasis in original), and noted that __ had previously 
asserted that had implemented the petitioner's initiatives nationally. The director had 
acknowledged letters such as Ms. the issue was not the absence of a claim, but the 
absence of evidence to support that claim. 
The petitioner stated: "I was ... actively involved in providing assistance to the Vietnamese region 
[sic] in the [Gulf Coast] area due to my knowledge of the Asian culture and my ability to speak 
Chinese." 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». Therefore, it is important to consider what the petitioner has submitted to support his claim. 
Page 7 
The petitioner cited a copy of Seedco subsidiary Seedco Financial's 2008 Annual Report, which 
included a section entitled "Stabilizing Small Businesses in the Gulf Coast." The short piece 
described a Vietnamese-owned Louisiana shrimping business that received loans and grants from 
Seedco after "diesel fuel prices escalated." The petitioner stated that he "was instrumental in 
reviewing this particular business's needs and assisted with securing a loan through Seedco financial 
on their behalf." The Annual Report, however, offers no support for the petitioner's claim to have 
personally participated in the case described, or to have been "very instrumental in providing 
technical assistance to various businesses in New Orleans after the hurricanes devastated the region." 
The petitioner had previously submitted several letters of support from Seedco officials, describing 
the petitioner's efforts after 2005, and none of those letters indicated that the petitioner had been 
directly involved in the Gulf Coast either after Hurricane Katrina in 2005 or in 2008 when fuel 
prices spiked. 
The petitioner stated: "I am a member of the Technical Assistance team that provides expertise 
nationally." The petitioner cited newly-submitted Exhibit 6 to support this claim. Exhibit 6 is a 
printout from Seedco's web site, describing "Consulting/Technical Assistance" that Seedco offers. 
The petitioner's name does not appear in this exhibit. The same exhibit mentioned both Restaurant 
Management Boot Camp and No More Kitchen Drama, but specifically identified both of them as 
initiatives in New York City. Thus, Seedco's own web site does not show national implementation 
of these projects. 
The petitioner also submitted evidence of recent activities, such as his "participation in the annual 
Microfinance USA Conference," which took place after the petition's filing date. An applicant or 
petitioner must establish that he or she is eligible for the requested benefit at the time of filing the 
application or petition. 8 C.F.R. § 103.2(b)(I). USCIS cannot properly approve the petition at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Thus, even if participation in a conference 
in New York showed the petitioner's influence outside of New York, the May 2011 conference 
occurred several months too late to affect his eligibility as of the January 2011 filing date. 
The petitioner submitted a copy of a report of recommendations by the President's AOlV1:,or-v 
on Faith-Based and Neighborhood Partnerships. The report identified 
as a member of the Economic Recovery and Domestic 
Poverty Taskforce. The national reach of_, as an organization, is not in dispute. The report 
does not mention the petitioner or his work, and other materials in the record demonstrate that the 
petitioner is responsible for_work only in Lower Manhattan, with a demonstrated emphasis 
on Chinatown. 
The director denied the petition on September 12, 2011. The director acknowledged the intrinsic 
merit of the petitioner's occupation, and acknowledged at least the potential for national impact. 
The director found, however, that "the petition lacks evidence that other business professionals 
nationwide have taken notice of the petitioner's work and have been influenced by that work." 
Page 8 
On appeal, counsel repeats the claim that the petitioner has "created unique programs ... that have 
been implemented nationally." The director acknowledged that the petitioner has claimed national 
implementation. Nevertheless, when the director specifically requested documentary evidence to 
support that claim, the petitioner failed to provide the requested evidence. On that basis alone, 
USCIS cannot approve the petition. See 8 C.F.R. § 103.2(b)(14). Counsel cannot resolve the issue 
in the petitioner's favor simply by repeating the same claim. The unsupported assertions of counsel 
do not constitute evidence. See Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BrA 
1980). 
A similar problem affects counsel's assertion that the petitioner "showed that the programs he has 
developed have had particular importance in recovering areas such as New Orleans." The petitioner did 
not substantiate this claim. Instead, the petitioner showed that a_ subsidiary provided loans to 
Gulf Coast businesses. The evidence submitted did not establish the petitioner's role (if any) in that 
endeavor, nor did it establish the extent to which" Financial's assistance helped to restore the 
Gulf Coast economy. 
Counsel contends that the director's decision 
is based on a subjective opinion of the beneticiary's credentials and contributions to 
the field of small business development. The Service does not clarify in its decision 
why it believes that the petitioner's contributions have not been significant, given the 
prior explanations of his work. The Service disregards the substantial contributions 
that have already been made by the Petitioner. 
The burden is on the petitioner to establish eligibility, not on the director to rebut the petitioner's 
claims. See section 291 of the Act, 8 U.S.c. § 1361. The petitioner cannot simply declare his work 
to be nationally significant and then challenge the director to prove otherwise. 
Counsel states that the petitioner has provided "technical assistance to thousands of entrepreneurs." 
The record is very vague on this point, because the petitioner has relied on witness letters rather than 
documentary evidence to establish the impact of his work, and the witnesses have all provided 
different figures, ranging from "over 500" to "nearly 1,400" to "over 2,000." lbe petitioner has not 
provided evidence to show that, as a result of his work, the economic recovery of Lower Manhattan 
has significantly outstripped progress in other localities. The petitioner has offered no objective 
basis for comparison between his work and that of his peers. He has simply declared that he merits a 
waiver by encouraging economic growth. 
In a subsequent brief, counsel summarizes previous submissions and again refers to the petitioner's 
claims as though they were demonstrated or undisputed facts. 
Counsel asserts that the petitioner "is considered an expert in micro finance methods tor small 
businesses. The Service did not discuss this area of [the petitioner's] qualifications in its decision." 
The assertion that the petitioner "is considered an expert" does not answer the question of who 
Page 9 
considers the petitioner to be an expert in this way. As is frequently the case in this proceeding, 
counsel then cites overall statistics about microfinancing and small business, followed by flatly 
declaring the petitioner to have made substantial contributions in the field. Counsel's statement 
includes citations to various prior evidentiary submissions, but crucially, when discussing the 
petitioner's mierofinancing work outside New York City, counsel cites only the petitioner's own 
earlier statement, which has no weight as evidence. 
With respect to the director's finding that the petitioner had failed to submit "evidence that other 
business professionals nationwide have taken notice of the petitioner's work and have been 
influenced by that work," counsel asserts that the director did not previously request such evidence. 
and therefore cannot fault the petitioner for failing to submit unrequested evidence. 
Review of the request for evidence shows that the director did, in fact, state that the petitioner had 
submitted no evidence to show that his work "has been widely implemented" or that Seedeo had 
used the beneficiary'S work as a model for other locations. The director also stated: "It is reasonable 
to expect that substantial documentation from well-known United States experts, established 
institutions, and appropriate United States governmental agencies would be readily available·' to 
support the petition. The petitioner responded to the notice by declaring his work to have been 
influential, and by submitting exhibits that did not support the claim. Therefore, the record does not 
support counsel's claim that the director unfairly based the denial on the petitioner's failure to 
submit evidence that the director had not previously requested. 
from t'r<)teSS()f 
Lubin School of Business, New York, New York. that the petitioner's 
"practices and policies in the area of training and informational campaigns have been implemented 
in Seedco offices the u.S. " but the source he cites for this claim is the previously 
submitted letter from simply repeats rather than 
corroborates that earlier claim. also points to a printout from Seedco' s web site, 
printed November 9, 2011, that reads: "We look forward to expanding our model programs across 
the country." This reference to potential future expansion, as of late 2011, does not show that 
Seedco has already used the petitioner's work as a nationally-implemented model; if anything, it 
implies the opposite. The web site did not specify the "model programs" or identify the petitioner as 
their creator. 
In all, Prof._repeats claims from previous witness letters and describes evidence already in 
the record. He concludes his letter by stating that his "evaluation relies upon ... documents 
provided by" the petitioner. That evidence indicates that the petitioner has narrowly targeted his 
efforts at Lower Manhattan, and Chinatown in particular. Attempts to show wider significance or 
impact have relied on general statistics, such as the total number of restaurant employees in the 
United States, without evidence to demonstrate that the petitioner's work has had a direct. 
perceptible impact at a national rather than local level. 
.' .. 
Page 10 
The Board of Immigration Appeals (BrA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BrA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
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 responsihle 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 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, 502 n.2 (BrA 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. {d. 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)). 
The letters considered above fail to establish the extent of the petitioner's impact outside of Lower 
Manhattan and Chinatown, and even then they provide conflicting and uncorroborated figures. 
Witnesses credit the petitioner with helping a given number of entrepreneurs or businesses, but fail 
to show the greater significance of those figures beyond the local level. The record contains 110 
reliable means by which to compare the petitioner's achievements to those of others in 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.