dismissed EB-2 NIW Case: Social Work

C1.S. Department of Homeland Sceurity 
CJ.S. Citizenship and Immigration Scnrices 
Of$ce oJ Adtninistrcirive .-Ipper~l.s. M S 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
LIN 08 142 51043 
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. fj 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. # 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(1 )(i). 
,UP agocl~ r- Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1 153(b)(2), as an alien of exceptional ability or a member of the 
professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a social 
worker. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an 
alien employment certification, is in the national interest of the United States. The director found that 
the beneficiary qualifies for classification as an alien of exceptional ability or a member of the 
professions holding an advanced degree, but that the beneficiary had not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
At that outset, we note that it is not clear that the beneficiary is currently qualified to work in this 
occupation, however, as the Department of Labor's Occupational Outlook Handbook (OOH), 
accessed at littp:l/www.bls.~ov~~~~c~/o~os060.11tn on December 17, 2009 and incorporated into the 
record of proceedings, indicates that all states require social workers to be licensed and the record 
contains no evidence that the petitioner has such a license. In her initial letter, the petitioner's 
- acknowledges that all social workers must be licensed, but asserts that 
the proposed employment does not require licensure because it "does not involve clinical social 
work." First, does not provide any support for the assertion that social workers not 
engaged in clinical work need not be licensed. Moreover, one of the beneficiary's proposed duties 
includes providing "appropriate counseling to clients and families." The petitioner does not explain 
why this duty is not "clinical." Therefore, in addition to the remaining discussion regarding the 
beneficiary's ineligibility, the beneficiary's licensure is an issue that would need to be overcome in 
any future filing. 
On appeal, counsel submits a brief and resubmits previously submitted evidence. For the reasons 
discussed below, we uphold the director's decision based both on the intrinsically local nature of the 
beneficiary's occupation and due to the complete lack of any evidence of the beneficiary's experience, 
let alone success, launching the type of national model program envisioned in this matter. Moreover, 
we withdraw the director's conclusion that the petitioner has established that the beneficiary qualifies 
for the classification sought. For the reasons discussed below, the record lacks evidence that the 
beneficiary possesses an advanced degree or equivalent as defined at 8 C.F.R. fj 204.5(k)(2) and 
evidence conforming to the regulatory requirements for an alien of exceptional ability set forth at 
8 C.F.R. fj 204.5(k)(3)(ii). Finally, it is noted that the record lacks the uncertified Form ETA 750B 
required for the benefit sought, 8 C.F.R. fj 204.5(k)(4)(ii), or the newer ETA Form 9089, Part J. 
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. -- 
Page 3 
(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 ofjob 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. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. $ 204.5(k)(2). The 
regulation further states: "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. 
Initially, counsel asserted that the beneficiary "is a university graduate who possesses a university 
degree in the applicable professional discipline" and "qualifies as a member of the professions as that 
term is defined at Section lOl(a)(32) of the Immigration and Nationality Act." We do not contest 
that the beneficiary's proposed occupation, social worker, falls within the pertinent regulatory 
definition of a profession. Members of the professions without an advanced degree, however, qualify 
only for the lesser classification set forth at section 203(b)(3)(ii) of the Act, a classification that does not 
allow for a waiver of the alien employment certification in the national interest. Thus, at issue is 
whether the beneficiary holds an advanced degree as defined at 8 C.F.R. $ 204.5(k)(2). 
The beneficiary holds a baccalaureate degree in Social Work fiom Centro Escolar University in the 
Philippines dated October 12, 1977. The record contains an evaluation fiom Global Education Group 
equating this degree to a baccalaureate degree in Social Work in the United States. As stated above, the 
petitioner did not submit an uncertified Form ETA 750B as required under 8 C.F.R. 5 204.5(k)(4)(ii) or 
an ETA Form 9089, Part J, which would have listed the beneficiary's experience. Rather, the petitioner 
submitted the beneficiary's self-serving resume that lists no experience after 2002. This self-serving 
document cannot even establish the beneficiary's alleged employment prior to 2002. Specifically, the 
regulation at 8 C.F.R. 5 204.5(g)(l) requires that evidence of employment consist of letters from 
current or former employers. Moreover, going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
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)). Regardless, the beneficiary lists experience as a day care worker at 
Quezon City Hall for an unspecified period, as a grade school teacher and as a parish secretary, none of 
which falls within the proposed field of social work. The beneficiary also lists no more than two years 
of experience as a "Social Welfare AidDay Care Worker" for the Municipal Social Welfare 
Development Office in Valenzuela City, Philippines. Even if the petitioner had documented this 
experience, it falls short of the five years progressive experience in the field of social work required for 
equivalency to an advanced degree. 8 C .F.R. 5 204.5(k)(2). 
The petitioner is the only employer to provide a letter supporting the petition. the -. 
petitioner's President and ~dministrator, does not indicat; the benefi~i&-~'s dates of employment with 
the petitioner. We note that the petitioner submitted the approval notice for the petitioner's 
nonirnmigrant petition in behalf of the beneficiary, which is dated February 14, 2006. This document 
does not establish that the beneficiary had five years of experience in the field of social work as of April 
14,2008, the filing date of the petition before us. 
In light of the above, while the beneficiary received her baccalaureate in 1977, more than 30 years 
before the petition was filed, the petitioner has not provided the required initial evidence necessary to 
document the beneficiary's post-baccalaureate progressive experience in the field. Thus, the record 
does not establish that the beneficiary is a member of the professions holding an advanced degree or its 
equivalent as defined at 8 C.F.R. 5 204.5(k)(2). 
Section 203(b)(2) of the Act also includes a classification for aliens of exceptional ability. Neither 
counsel nor the petitioner has ever claimed that the beneficiary qualifies as an alien of exceptional 
ability. Nevertheless, we will briefly address this classification as the beneficiary does not qualify as a 
member of the professions holding an advanced degree. 
The regulation at 8 C.F.R. 5 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien 
must meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. 
These criteria follow below. The regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as 
"a degree of expertise significantly above that ordinarily encountered." Therefore, evidence 
submitted to establish exceptional ability must somehow place the alien above others in the field in 
order to fulfill the criteria below; qualifications possessed by every member of a given field cannot 
demonstrate "a degree of expertise significantly above that ordinarily encountered." The criteria at 
8 C.F.R. § 204.5(k)(3)(ii) are as follows: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other 
institution of learning relating to the area of exceptional ability. 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation 
for which he or she is being sought. 
(C) A license to practice the profession or certification for a particular profession 
or occupation. 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability. 
(E) Evidence of membership in professional associations. 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
The only evidence relating to any of these criteria is the beneficiary's baccalaureate. Section 
203(b)(2)(C) of the Act provides that the possession of a degree, diploma, certificate or similar 
award from a college, university school or other institution of learning shall not by itself be 
considered sufficient evidence of exceptional ability. The petitioner has not established that a 
baccalaureate degree in Social Work is indicative of or consistent with a degree of expertise 
significantly above that ordinarily encountered in the field. Rather, acknowledges that 
a baccalaureate is the minimum education for the occupation. Regardless, the regulation at 8 C.F.R. 
§ 204.5(k)(3)(ii) requires evidence relating to three of the above-criteria. ~he~etitioner has only 
submitted evidence relating to one. Thus, the petitioner has not established that the beneficiary is an 
alien of exceptional ability. 
As the petitioner has not demonstrated that the beneficiary is either a member of the professions 
holding an advanced degree or an alien of exceptional ability, the issue of whether waiving the job 
offer requirement is in the national interest is moot. Nevertheless, we will address this issue as it 
was the sole basis of the director's decision. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states, in pertinent part: 
The Service 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 Dep 't. of Trcmsp., 22 I&N Dec. 2 15, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), 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. Id. at 2 17. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17- 18. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. 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. Id. 
The intrinsic merit of social work is not at issue in this proceeding. The director then concluded that 
the proposed benefits of the beneficiary's work, involvement in the petitioner's Community Care 
Licensing (CCL) program for developmentally disabled individuals needing basic care and 
supervision, would not be national in scope. Throughout the proceeding counsel has asserted that 
the program will serve as a national model. The petitioner initially asserted that community based 
programs "do not initially take root" but speculated that if the beneficiary's program succeeds, "our 
model will be expanded and shared to [sic] any community states and regions." 
In addressing this issue, NYSDOT states: 
[Tlhe analysis we follow in "national interest" cases under section 203(b)(2)(B) of the 
Act differs from that for standard "exceptional ability" cases under section 203(b)(2)(A) 
of the Act. In the latter type of case, the local labor market is considered through the 
labor certification process and the activity performed by the alien need not have a 
national effect. 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. 
22 I&N Dec. at 2 17, n.3 
As with providing community services for the developmentally disabled, legal services for those 
without financial means, education and nutrition are all areas that are important at the national level. 
The above footnote makes clear, however, that the national importance of the issue is insufficient. 
The question is whether the activity inherent to the proposed occupation would result in benefits that 
are discernible at the national level. Significantly, it is not enough to conceive of a means whereby 
the beneficiary's work could eventually have a national impact. To hold otherwise would render the 
national scope requirement meaningless. Rather, the petitioner must demonstrate that the proposed 
employment is within a framework that typically has such an impact, such as the alien in NYSDOT, 
who worked on the proper maintenance of bridges and roads already connected to the national 
transportation system. 22 I&N Dec. at 21 7. 
The proposed employment is as a social worker working for a single CCL office that is not already 
looked to as a national model as opposed to working for a national consulting service for 
communities wishing to follow such a model. As such, we concur with the director that the 
proposed employment would not produce benefits that are national in 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. 
Much of the record documents the increasing need for social workers to care for the elderly, the 
shortage of social workers in California, the importance of community care for the developmentally 
disabled and California's regulation of the industry. Eligibility for the waiver must rest with the 
alien's own qualifications rather than with the position sought. In other words, we generally do not 
accept the argument that a given prqject is so important that any alien qualified to work on this 
project must also qualify for a national interest waiver. Id. at 21 8. 
At issue is whether this beneficiary's contributions in the field are of such unusual significance that 
the beneficiary merits the special benefit of a national interest waiver, over and above the visa 
classification she seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A vetitioner must demonstrate the beneficiarv's vast history of achievement with some degree of < L 
influence on the field as a whole. Id. at 219, n. 6. has stated that the beneficiry has 
made a difference in the lives of the petitioner's clients, stating more specifically that the 
beneficiary's advocacy on behalf of the petitioner's clients resulted in a 15 percent increase in the 
percentage of the petitioner's clients actively participating in work support programs. - 
does not indicate whether this increase occurred because the beneficiary took a new position or 
replaced a previous social worker. ultimately, does not explain how the beneficiary's 
advocacy of the petitioner's clients sets the beneficiary apart from any other qualified social worker. 
does not suggest that the beneficiary has a successful track record with a degree of 
influence on the field as a whole, such as havin develo ed novel social work methodologies that are 
being applied or even reviewed nationwide. gp certainly does not suggest that the 
beneficiary has any experience, let along success, establishing a national model program. 
We recognize that the director's request for additional evidence, worded as if the beneficiary had 
self-petitioned, mistakenly implied that the petitioner needed to submit evidence of its own 
accomplishments rather than those of the beneficiary. ~hus, subsequent letter 
addresses her own successes. The director's final decision, however, while continuing to reference 
the beneficiary as a self-petitioner, makes clear that the record lacks evidence of the beneficiary's 
accomplishments in the field. Counsel's brief, while recognizing that the director mistakenly 
identified the beneficiary as the self-petitioner, provides no new insights or evidence regarding the 
beneficiary's past record. 
The record contains no evidence that the beneficiary has any experience creating the type of model 
program envisioned by the petitioner. Rather, she has, at best, teaching and social work experience 
potentially qualifying her for a job as a social worker should she obtain a license. Nothing in the 
legislative history suggests that the national interest waiver was intended simply as a means for 
employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. 
Id. at 223. In a similar vein, we are not persuaded that the national interest waiver was intended as a 
means for employers to qualify a beneficiary who otherwise qualifies for classification as a professional 
pursuant to section 203(b)(3) of the Act for a higher classification pursuant to section 203(b)(2). 
Labor certification process not viable option at this time, and redundant: In fact, 
[the beneficiary] has not initiated an individual labor certification before this date. Due 
to the forces of 911 1, the Homeland Security reorganization resulted in hundreds of 
thousands of employment based immigrant visas vanishing from the system. Our 
program and this beneficiary now suffer, as no visas remain available to complete an 
immigrant process now after three (3) years in queue. This renders the system useless in 
meeting the needs for permanent immigrant benefits within the time deemed rational to 
most employers and workers. 
This assertion is ill-defined and unsubstantiated. Congress, not U.S. Citizenship and Immigration 
Services (USCIS) or the Department of Homeland Security (DHS), sets numerical and country limits 
for employment based immigration. Sections 201 (d) and 202 of the Act. The petitioner does not assert 
that these sections were amended after September 11, 2001. does not assert that the 
beneficiary's has an approved employment based petition that "vanished." In fact, - 
acknowledges that no visa petition was previously filed in the beneficiary's behalf. We reiterate that 
nothing in the legislative history suggests that the national interest waiver was intended simply as a 
means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification 
Page 9 
process, which includes waiting for visas to become available in the classification for which an alien 
is eligible. See id. at 223. 
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 alien employment 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 the filing of a new petition by a United States employer 
accompanied by an alien employment certification certified by the Department of Labor, appropriate 
supporting evidence and fee. 
ORDER: The appeal is dismissed.