dismissed EB-2 NIW Case: Software Development

~lmLICCOPY 
DATE: DEC 1 42011 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § 11S3(b )(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
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.S(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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 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 either a chief executive officer (CEO) or a patent agent/attorney. 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 ajob offer would be in the national interest of the 
United States. 
On appeal, the petitioner submits a brief and supporting documentation. The petitioner also requests 
oral argument. The regulations require the requesting party to explain in writing why oral argument is 
necessary. Furthermore, U.S. Citizenship and Immigration Services (USCIS) has the sole authority to 
grant or deny a request for oral argument and will grant argument only in cases involving unique factors 
or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. § l03.3(b). In this 
instance, the petitioner states that he "intends to present arguments that cannot be sufficiently described 
in writing, such as to demonstrate one embodiment of the software system that Appellant has invented .. 
. . Appellant further requests that high-speed Internet connection be available for the demonstration." 
For security reasons, the AAO cannot allow an outside party, such as the petitioner, direct access to its 
computer systems or Internet connection for a software demonstration. Because such a demonstration 
is the only specified reason for oral argument, the AAO denies the request. 
The petitioner also argues that "USCIS cannot deny appellant's petition based on deficient adjudication 
process." The petitioner then asserts, at length, that "USCIS has unreasonably delayed adjudication of 
Appellant's petition," because the adjudication should have taken four months instead of eight. The 
petitioner also asserts that, in a prior filing, USCIS incorrectly listed his country of origin as the 
People's Republic of China rather than Taiwan. The petitioner does not explain how any of these 
factors caused the denial of the petition, nor does he explain how these assertions support the claim that 
"USCIS cannot deny [the] petition." Therefore, the petitioner's complaints fall outside the scope of the 
appeal. 
The AAO will now turn to the merits of the petition and the appeal. 
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 
Page 3 
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, 101st 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 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 o/New York State Dept. o/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, 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 
Page 4 
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. 
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 January 4, 2010. On that form, the petitioner stated 
his occupation as "Patent AgentlIntellectual Property Law" (Part 5, line 3). Regarding his proposed 
employment, the petitioner stated his job title as "Chief Executive Officer" (Part 6, line 1). Under 
"Nontechnical Description of Job (Part 6, line 3), the petitioner stated: "Start up and manage a new 
technology company, developing a software platform to deliver and sell on-demand software, as 
described in US Patent Publication No. 200910138876." 
On an accompanying Form ETA 750 Part B, Statement of Qualifications of Alien, the petitioner 
identified his . ve Employer" as 
a law firm in Cambridge, Massachusetts. The petitioner identified his 
occupation as "Chief Executive Software Systems." Elsewhere on that same form, the petitioner 
indicated that he has worked at that same law firm since 2006, first as a "Technical Specialist" and 
then as a "Student Associate." Therefore, the law firm does not appear to be the "new technology 
company" the petitioner mentioned on Form 1-140. There is no evidence that the petitioner started 
the law firm and intends to become its CEO. The petitioner appears, instead, to have mistakenly 
identified his current employer as his prospective employer. 
In an introductory statement submitted with the petition, the petitioner stated: 
Petitioner proposes to seek employment as a Chief Executive Officer in a technology 
company based on Petitioner's invention disclosed in U.S. Patent Publication No. 
20910138876 [sic]. Briefly, Petitioner's invention relates to Cloud Computing. More 
advantageous than the existing cloud computing infrastructure, Petitioner's invention 
does not require a web browser. ... Specifically, Petitioner's invention concerns the 
technology of a computer software platform that delivers (or "streams") software 
applications . . . based on user demands. In other words, Petitioner's invention 
establishes a new software delivery channel (or software retailer) that sells computer 
software without the complication of downloading andlor installation .... 
Users may subscribe or unsubscribe to whatever software applications they want or 
they don't want, which software applications are installed in the Cloud, not in the 
users' PC .... 
Page 5 
Users only pay for their actual use or subscription of the software, just like paying for 
their monthly utility bills .... 
Several months after Petitioner filed a patent application, Intel Corporation ("Intel") 
has independently developed a system substantially the same as what Petitioner has 
invented. See the attached White Papers .... Petitioner calls attention to Intel's 
comment on page 4 of White Paper 1, which states that "[b lased on the strong 
positive outcome of this study, Intel is developing more concrete deployment plans to 
realize the benefits of streaming," (emphasis added). 
Moreover, in White Paper 2 ... , Intel states that "[w]e have found that whether 
services are kept in-house or outsourced to the cloud, the ability to perform local 
computing on the client offers the best user experience and the flexibility to run 
different types of applications," (emphasis added). 
In view of the above, Petitioner believes that clear and convincing evidence has been 
provided to show that, in the near future, many software applications will be 
delivered via the software delivery model invented by Petitioner. For at least this 
reason, Petitioner's proposed employment is in an area of "substantial intrinsic 
merit." 
Further, the software delivery model of Petitioner's invention provides computer 
users the benefit of buying software applications with only a small fee ... [without 
needing] to spend time and effort to install the software applications before use .... 
Still further, the software delivery model of Petitioner's invention provides software 
makers ... a new channel to sell their products and receive proper compensation .... 
Because Petitioner's invention provides advantages to all computer users and 
software makers of the United States, the benefit of Petitioner's proposed 
employment is therefore "national in scope." 
Petitioner's patent application was filed before Intel's development of this 
technology. Accordingly, Petitioner has priority over Intel on this technology .... 
Therefore, if Petitioner could not legally and permanently reside in the United States, 
Petitioner would not be able to independently pursue this technology in the United 
States. As a result, the intellectual property of this technology would not be able to 
remain in the United States. Meanwhile, Petitioner also would not be able to create 
jobs in the United States while pursuing this technology . 
. . . Because the Petitioner's invention may deliver genuine software applications to 
end consumers with only a fraction of the original costs, Petitioner's proposed 
Page 6 
employment would improve the economy of the United States by encouraging 
transactions between software makers and end consumers. 
(The petitioner's emphasis.) One of the two "White Papers" from Intel is a "Technical Brief," 
entitled "Software On-Demand: OS/Application Streaming Client Study," undated but copyrighted 
2008. The other, dated March 2009, is an "Intel Brief' with the title "Better Together: Rich Client 
PCs and Cloud Computing." 
The two Intel documents show dates after November 2007, when the petitioner filed his patent 
application, but the petitioner submitted no definitive evidence to show when Intel began to develop 
the streaming or cloud technology described in the two "White Papers." The documents show that 
Intel was already studying the technology in 2008; the "Technical Brief' was not simply a 
hypothetical suggestion that Intel should begin to develop that technology. Therefore, the record 
contains no evidence that the petitioner's work preceded that of Intel. 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)). 
In terms of patent law, the assertion that the petitioner "has priority over Intel" is ultimately a matter 
for the USPTO to decide. The record is silent as to the number and timing of Intel's filing of patent 
applications relating to the "White Papers" in the record. Because the record does not show that the 
USPTO approved the patent application, there is no evidence that the USPTO has accepted the 
petitioner's claims of priority. 
The petitioner submitted evidence of his advanced degrees in physics. His resume indicates that he 
began studying law at Suffolk University Law School, Boston, Massachusetts, in 2008, and expects 
to receive his Juris Doctor degree in 2012. 
A September 10, 2009 letter to the petitioner from the United States Patent and Trademark Office 
(USPTO) reads, in part: 
You are not being registered as a patent attorney or patent agent. However, you have 
passed the examination and demonstrated possession of the required technical 
qualifications. Thus, pursuant to 37 CFR § 11.9(b), you are hereby granted limited 
recognition until expiration of your visa, i.e., until August 4,2010, to prosecute patent 
. . in which the . ant is a client of the 
The petitioner submitted copies of scholarly articles he published as a graduate student, as well as 
what to be a complete photocopy of his book, 
published by Verlag Dr. Muller, a "print-on-demand" publishing house. The 
not explain the relevance of these publications to his intended work in software 
distribution and patent law. 
Page 7 
The petitioner also submitted a copy of the patent application, filed November 22, 2007, that he 
mentioned on Form 1-140. The record does not indicate that the USPTO has taken any final action 
to approve or deny the patent application. 
On March 18, 2010, the director issued a request for evidence, instructing the petitioner to submit 
further documentation to meet the requirements spelled out in NYSDOT. The director requested 
evidence of prior achievements and influence to distinguish the petitioner from other CEOs. The 
director also stated that the petitioner "must distinguish between working as a patent or technical 
specialist and working as CEO which is the proposed employment of the petition." 
In response, the petitioner stated: "[Nothing] in the Act limits immigrant petitioners to propose only 
a single prospective employment when seeking to waive the requirements of Section 203(b)(2)(A)." 
He added: 
[U]nder the circumstances at the time of filing this petition, Petitioner subjectively 
believed that proposing an employment as a chief executive officer (CEO) in a 
software corporation to be established by Petitioner may be evidentially more 
advantageous than other prospective employments . 
. . . Petitioner submits that it is inherently unfair for immigrant petitioners, when 
seeking to waive the requirements of Section 203(b)(2)(A) [of the Act], to be limited 
to only one single proposed employment. Moreover, during the pending period of 
this petition, the circumstances have changed such that the originally proposed 
employment may not be more advantageous than the other possible employments that 
should have been proposed in the originally filed petition. 
In view of the above, Petitioner respectfully requests that two prospective 
employments be proposed in this petition, which are: 
(1) The first proposed employment of a registered patent agent or attorney 
... ; and 
(2) The second proposed employment of a CEO in the software corporation 
established by Petitioner. 
As an example of his work as a patent agent, the petitioner submitted a copy of a consulting 
agreement between Nantero, Inc. and the petitioner (as "an independent consultant"), engaging the 
petitioner to prepare patent applications on Nantero's behalf. The date of the agreement is February 
26, 2010, nearly two months after the petitioner filed the petition. The USPTO previously granted 
the petitioner only "limited recognition . . . to prosecute patent applications in which the patent 
applicant is a client of the law firm." The 
agreement with Nantero, no there is no 
evidence that Nantero is a client of that firm. 
Page 8 
res:pel~t to his intended work as a CEO, the petitioner submitted a copy of the business plan for 
The plan has a 2010 copyright date. _bylaws are dated 
February 15, 2010, after the petition's filing date. Three days later, the Internal Revenue Service 
assigned _ an Employer Identification Number. There is no evidence that _ existed as 
a corporation or in any other legal capacity when the petitioner filed the petition on January 4,2010. 
The director denied the petition on August 12,2010. The director stated: "the petitioner is incorrect 
in suggesting that there can be two or [more] proposed employments on a single petition." The 
director also concluded: "the petitioner has not established that his past accomplishments set him 
significantly above his peers [so] that a national interest waiver would be warranted." 
On appeal, the petitioner states that the director "denied Appellant's proposal of two or more 
employments in a single petition and quoted 8 C.F .R. § 103 .2(b )(8) as a legal basis. Appellant 
submits that 8 C.F.R. § 103.2(b)(8) cannot be a proper legal basis to deny Appellant's proposal of 
two or more employments in a single immigrant petition." The petitioner correctly notes that the 
cited regulation concerns determinations regarding sufficiency of the evidence, rather than multiple 
employment proposals. 
The director did not specifically cite the petitioner's reference to "two or more employments" as a 
basis for denial of the petition. Rather, the director stated that there is no regulatory provision that 
permits the petitioner to assert multiple prospective employment claims on a single petition. While 
the petitioner seeks a waiver of the requirement that he document a specific offer of employment 
with a labor certification, applying for the waiver does not mean that the claim can rest on several 
entirely hypothetical claims about what the petitioner may do in the future. The petitioner must still 
explain how his future work will prospectively benefit the United States. He cannot "stack the deck" 
by listing multiple mutually exclusive possibilities. 
Also, the director did not cite the regulation at 8 C.F.R. § 103.2(b)(8) "as a legal basis" for finding 
that the petitioner could not set forth multiple employment claims. The director's discussion of the 
petitioner's multiple employment claims took up only one paragraph of a three-page decision. By 
coincidence, the next paragraph included the mention of 8 C.F .R. § 103 .2(b )(8). 
The petitioner cites a Supreme Court decision that refers to "the right of the individual ... to engage 
in any of the common occupations of life" (Meyer v. State of Nebraska, 262 U.S. 393, 399 [1923]). 
The petitioner, however, has not shown that any court has ever construed that passage to mean that 
an alien has a constitutional right to a national interest waiver. The AAO rejects the argument that, 
by requiring the petitioner to explain exactly what he intends to do in the United States, the director 
has committed an impermissible infraction against the petitioner's rights. 
Although the discussion of multiple employment claims took up only a few sentences of the 
director's decision, the petitioner devotes the bulk of his appellate brief to the issue. Because the 
discussion was not central to the director's decision, it would serve no useful purpose to discuss all 
of the petitioner's related arguments at length. Even if there were no dispute that a petitioner could 
claim as many potential future jobs as he or she desired, the petitioner would not have overcome the 
Page 9 
director's core finding that the petitioner failed to establish a record of past impact and influence in 
his intended occupation(s). 
NYSDOT requires the alien seeking the waiver to have "a past history of demonstrable achievement 
with some degree of influence on the field as a whole." Id. at 219 n.6. The purpose of the waiver is 
not "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. at 219. It is on this point that the 
petitioner has failed to establish eligibility. 
The petitioner states: 
The Officer cited Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm. 1998) in 
asserting, "[t]he agency has previously held that a petitioner may not make material 
changes to a petition in an attempt to make the petition conform to agency 
requirements." ... This is not applicable in Appellant's case. 
The petitioner contends that Izummi does not apply because, at the time of filing, the USPTO had 
already granted him "limited recognition ... to prosecute patent applications." The petitioner has, 
however, submitted several exhibits relating to changed circumstances. For instance, when he filed 
the petition, he made vague references to his plans to become the CEO of an unnamed company. 
Later, he submitted several documents relating to _ dated after the filing date. The petitioner 
asked the director to take _ business plan into account, even though that business plan did 
not exist when the petitioner filed the petition. 
As another example, the petitioner suggested that he may serve the national interest as a patent 
attorney, even though he was still a law student. The petitioner cannot obtain a national interest 
waiver now, based on the expectation that he will one day qualify to practice law. 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)(1). 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). 
More fundamentally, the petitioner has not established any past history of demonstrable 
achievement, either as a CEO or as a patent attorney, with some degree of influence on the field as a 
whole. He cannot have done so, because when he filed the petition, he had never been either a CEO 
or a patent attorney. The petitioner based his waiver application not on any track record of success, 
but on his confidence that his software delivery system will eventually be successful once he 
introduces it to the market. 
The petitioner asserts that "[ s ] elf-employment is common or traditional for patent agents or attorneys 
in the United States." The petitioner also states: 
Chapter 22.2U)(4) of [the] Adjudicator's Field Manual provides that: 
Legacy INS initially proposed limiting the national interest waiver to 
occupations where self-employment is common or traditional ... However, 
commenters to the proposed rule questioned whether the waiver of job offer 
really meant waiver of labor certification. Therefore, the final regulation 
deleted the requirement of self-employment or listing in the pilot program and 
states only that it must be shown that the waiver would be in the national 
interest. (Emphasis added). 
Accordingly, the original intent of national interest waiver in the Rules is to cover 
occupations where self-employment is common or traditional. By deleting "self­
employment" from the language of the final Rules and by stating only "national 
interest," the final Rules are actually broadened in scope to include occupations in 
addition to those where self-employment is common or traditional. 
(The petitioner's emphasis.) Nothing in the above argument establishes that self-employment is a 
sufficient basis for the national interest waiver. NYSDOT addressed the issue of self-employment in 
the following passage: 
The Service acknowledges that there are certain occupations wherein individuals are 
essentially self-employed, and thus would have no U.S. employer to apply for a labor 
certification. While this fact will be given due consideration in appropriate cases, the 
inapplicability or unavailability of a labor certification cannot be viewed as sufficient 
cause for a national interest waiver; the petitioner still must demonstrate that the self­
employed alien will serve the national interest to a substantially greater degree than 
do others in the same field. 
Id. at 218 n.5. The petitioner, in the present proceeding, has not shown that, as a self-employed 
patent agent or attorney, he will serve the national interest to a substantially greater degree than 
would others in the same field. He emphasizes his Chinese fluency and asserts that "only about 5% 
of the registered patent practitioners hold a Ph.D. degree in the mechanical, electrical, computer, and 
similar fields," but does not explain how his language skills and Ph.D. in Physics presumptively 
make him a superior patent agent or attorney. 
Once again, while the petitioner has dealt with various aspects of patent law in the past, he had no 
documented track record as a patent agent or attorney when he filed the petition. (He claimed six 
months as a patent engineer in Taiwan in 2003, but did not document it or explain how the job 
compared to that of a patent agent or attorney.) After he filed the petition, he secured a contract as a 
consultant for Nantero. It is not clear how that contract fits with the USPTO's September 10,2009 
letter, which only permitted the petitioner to work with clients 
In a letter dated September 10, 2010 general counsel and chief IP counsel of 
_ states: "it is of primary importance to continue to create patent rights that are 
enforceable in the greater China area. [The petitioner's] past working experiences along with his 
technological expertise and his language ability can ensure Nantero's continued success in the 
· , , 
Page 11 
greater China area." As noted previously, this work did not begin until after the petition's filing 
date. Also, the record contains no objective evidence riority of the petitioner's 
patent work compared to that of others in the field. subjective belief that the 
petitioner possesses superior credentials in this regard is not sufficient. 
The petitioner submits a new USPTO letter, dated April 22, 2010, to support the petitioner's claim 
that most patent agents and attorneys are self-employed. The letter, however, does not say that. The 
letter states: "Registered practitioners are self-employed or employed by law firms, corporations or 
other institutions." The letter also states that the petitioner's "Limited Recognition has terminated" 
because the petitioner no longer works for The petitioner, on appeal, does not 
explain the authority under which he continues to work for Nantero as a "consultant." 
In a further attempt to demonstrate a record of past achievement, the petitioner states that he "has at 
least achieved inter alia an invention of a software system and filed a patent application therefor." 
The petitioner asserts that any decision on the waiver application should take into account "how 
promising is the business that Appellant seeks to establish." An alien cannot secure a national 
interest waiver simply by demonstrating that he or she holds a patent. Whether the specific 
innovation serves the national interest must be decided on a case by case basis. NYSDOT, 22 I&N 
Dec. 221 n. 7. The petitioner has not shown that the USPTO has even approved the patent 
application, much less that the patented invention has had any impact at all on the computer industry. 
The petitioner did not claim any experience running his own business at the time he filed the 
petition, and only established Apisode after the filing date. The petitioner's own subjective and self­
interested assessment of "how promising is the business" cannot show that he qualifies for the 
waiver of a requirement that, by law, normally applies to the immigrant classification he seeks. 
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.