dismissed EB-2 NIW Case: Software Engineering

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative 
Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 1 5 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) . · 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the. decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiiy 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 have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in. 
accordance with the instructions on 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)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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) ofthe Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a software engineer with _ 
The petitioner asserts that an exemption from the requirement of a job offer, and thus of a 
labor certification, is in the. national interest ofthe 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 ofthe United States. 
On appeal, the petitioner submits a brief from counse~ two witness letters, and other exhibits. 
Section 203(b) ofthe Act states, in pertinent part: 
(2) Aliens Who Are ·Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
I 
(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) WaiverofJob 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 wruver 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). 
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Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the ''prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of: the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of 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 establish that the alien will serve the national interest to a substantially greater degree than 
would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien wil~ in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contnbutions 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 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 o·rdinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140 petition on April 18, 2012. In an accompanying statement, 
· counsel called the petitioner "an internationally acclaimed researcher with unsurpassed expertise in 
the nationally crucial field of Information Technology .... He has a remarkable history of 
exceptional results that have had a significant influence on his field." 
In a personal statement accompanying the petition, the petitioner described his duties at 
where he has worked since 2005. The petitioner stated that he works with clients such as Health Net 
(a· managed health care company), and that many of these clients rely on legacy systems (obsolete 
software) that are expensive to maintain but difficult to replace. 
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The petitioner noted that he had written a small number of techflical articles, but all these articles 
date from his time as a student at the ~ only one of them appeared after 2001. 
There is no indication that his work at involves the publication of new scholarly work. 
India, stated: 
[The petitioner] currently holds a position of Senior Associate- Projects in 
- We have worked on multiple projects together. He is one of 
the most active and important members I have worked with in a team and his hard 
work ethic has impressed me very much .... 
[The petitioner] has been working on system design for high availability and web 
technologies for more than 9 years. One of his specializations is to build reliable 
systems by developing efficient and scalable computers and these mainly include 
legacy systems ... [that are] expensive to maititain .... He worked on many 
migration projects that required porting of data and programs to newer technologies, 
which were easier to maintain. 
described two projects that the petitioner completed. For , a oompany that 
handles data for th~ petitioner "made a significant contribution in building the 
important application 'Consolidated Eligibility System' ... which is responsible for accurate and 
timely reporting 'of eligibility information for all customers of " For the retail chain, 
the petitioner ''was responsible for the synchronizing [of] ditterent layers of legacy systems" in a 
project that took place "during the holiday season sales [when] a system outage of a day could ca1-1se 
heavy losses." . · 
a validation engineer. at met the petitioner at a 2005 
conference. described various projects that the petitioner undertook, for example: 
He proposed a developed for retail companies that 
would reduce the round trip time of manufacturing to delivery and also address 
security concerns of similar softwares that were available .in the business. Noticeably, 
he proposed a multi-level access control framework for the application. This model 
was clearly a breakthrough to the traditional information assurance area as it 
introduced multiple-level role based access control into the application, which could 
further prevent network intruders and protect sensitive information more effectively. 
Witnesses from offered letters as well, praising the petitioner's work in varying degrees 
of detail. contract negotiations manager iti stated 
that the petitioner "served a critical role in identifying testing needs for system compatibility wit,h 
both receiving and transmitting required data." . 
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The petitioner also submitted letters indicating that he had provided various services. such as 
creating web sites, to various local organizations such as the 
The-letters indicate that the petitioner 
pursued these projects as volunteer efforts outside of his employment, and there is no evidence that 
this work was significant outside of the organizations themselves. While commendable, these 
volunteer efforts are not the foundation for employment-based immigration benefits. 
On May 15, 2012, the director issued a request for evidence. The director acknowledged the 
intrinsic merit and national scope of the petitioner's occupation, but found that the petitioner had not 
established a level of impact on the field that would merit the national interest waiver. The director 
instructed the petitioner to submit documentary evidence of his influence on the field. 
In response, counsel listed the petitioner's "achievements in the field of Information Technology 
research," for example: 
1. [The petitioner] · conducted a study and presented a paper on suggestions for 
improving Wireless Application Protocol ("W AP"). . 
. . He also recommended 
this concept in vehicles and information systems using the technologies HTML, 
Java and W AP, which is currently in practice. 
2. [The petitioner] worked on developing efficient and scalable computers, which 
mainly include legacy systems .... The component-based migration greatly 
reduced the efforts in integrating the new components and enabled the sharing 
and reusing of the existing components, which is being used by U.S. companies to 
dramatically reduce the transition cost. In addition, this design makes systems 
reliable and easier to maintain. 
3. [The petitioner] build a ("CES") for 
[The petitioner] is the first to have successfully designed this information system 
which is responsible for accurate and timely reporting of eligibility information 
for all customers of 
r (Counsel's emphasis.) Counsel used terms such as "landmark" and "breakthrough" to describe 
nroiects that the petitioner undertook for clients such as 
~ The unsupported assertions of counsel do not constitute evidence. See Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n2 (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 (BIA 1980). Therefore, it is important to see 
what sort of evidence the petitioner has submitted to support counsel's claims. 
Under the heading "Evidence of[the petitioner's] leading role," the petitioner submitted a copy of an 
electronic mail message from a project manager at indicating that the 
petitioner's "expertise and professionalism were key to the success of this project." The record does 
not establish the greater significance of the project. 
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As evidence of the petitioner's "publications," the petitioner submitted several documents relating to 
his work for The materials consist of a "project presentation," 
which appears to consist of printouts fTnm ~n e1ectrnnic ~1irle nresentation; several documents 
relating to the ''V-Enquire" project at : "COSMOS Application Re-
engineering Project Solution Approach." The materials date from early 2002 when the 
petitioner was a graduate student. The petitioner submitted no evidence that any of these materials 
are "publications" in the usual sense of the word. They appear, instead, to have been prepared for 
internal distribution to specific clients. 
The petitioner submitted add.itional witness . letters from semor 
-software engineer at who ''worked in the technical support 
departments for companies such as ; and employed 
"in sales and. marketing at The letters include passages that closely 
resemble one another and prior submissions such as counsel's introductory statement. For instance, 
the letters from both contain the following passage: 
As I will describe in this letter, [the petitioner] is a gifted researcher with unique and 
extraordinary skills in the field of information technology with a focus on building 
reliable systems by developing efficient and scalable computers and these mainly 
include legacy systems. His achievements are genuinely outstanding and granting the 
requested waiver and permanent resident status will positively influence the United 
States. 
stated that the petitio1:1er "is a truly outstanding Software Professional with 
unique skills and extraordinary abilities in the field of Legacy Systems & Web Technology and he 
has had a significant impact on the field at a very early stage in his career." letter 
includes the same sentence, with the same arbitrary capitalization of "Software Professional" and 
"Legacy Systems & Web Technology." offered a very similar statement, when he 
stated that the petitioner "is a truly outstanding Software Professional with unique skills and 
extraordinary abilities in the field of Information Technology." The similar language implies 
common authorship. Cf Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d 
Cir. 2006) (upholding an immigration judge's adverse· credibility determination in asylum 
proceedings based in part on the similarity of some ofthe affidavits); Mei Chai Ye v. U.S. Dept. of 
Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge may reasonably 
infer that when an asylum applicant submits strikingly 
similar affidavits, the applicant is the 
common source). With respect to the likely identity of the common source, the AAO notes that 
counsel,. throughout this proceeding, has arbitrarily capitalized the p~titioner's field and occupation. 
The director denied the petition on October 9, 2012. Regarding the petitioner's work, the director 
stated: ''The improvements have helped several companies maintain better records and improve their 
workflow. However, the evidence is vague on how the petitioner's work has made an impact on the 
field as a whole." The director concluded that the impact of the petitioner's work has been "more 
localized than on a national level." 
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On appeal, counsel observes that, in the denial notice, the director erroneously referred to the 
petitioner as a "physician," and elsewhere stated that the petitioner's work involved "downhole 
telemetry." The AAO acknowledges that these references were in error, likely copied from earlier 
decisions. Nevertheless, the remainder of the decision· ·correctly refers to the petitioner's real 
occupation, and specifically identifies several of the petitioner's evidentiary exhibits. These stray 
errors were not foundational to the director's decision, and do not invalidate the rest of the decision 
or prejudice its outcome. Furthermore, the "physician" reference was in the context of whether or 
not the petitioner had performed "leading or critical roles" as the petitioner·had Claimed. The phrase 
"leading or critical roles" derives from the USCIS regulation at 8 C.F.R. § 204.5(h)(3)(viii), which 
relates to a different immigrant classification, alien of extraordinary ability, under section 
203(b)(l)(A) of the Act. The petitioner does not seek that classification in this proceeding, and 
therefore evidence of a "leading or critical role" would not have established eligibility for the 
classification he now seeks. 
Counsel asserts: ''The Petitioner is in the field oflnformation Technology, which due to the nature of 
the field, is very difficult to quantify in terms of achievement as opposed to other fields such as 
biology or medicine." (This sentence appears twice in the appellate brief: on pages 3 and 8.) The 
petitioner has not shown that his achievements, by nature, are difficult to document with objective 
evidence, such that the petitioner can rely only on witness letters. Witnesses have used terms such 
as "breakthrough" and "model" to describe the significance and lasting influence ofthe petitioner's 
work. The significance of the petitioner's efforts would not be self-evident in a vacuum; there must 
be some context to allow meaningful comparison between the petitioner's work and that of others, or 
to show significant improvement in system performance resulting from those efforts. The petitioner 
has not shown that such comparisons defy objective quantification. Counsel states, for instance, that 
one of the petitioner's systems "is being used by U.S. companies to dramatically reduce the 
transition cost." Costs, by definition, are quantifiable. To determine the significance of the cost 
reduction, the petitioner could document the original costs; the cost savings through the petitioner's 
work; and the lesser cost savings resulting from the work of his peers. The petitioner's refusal or 
inability to provide those figures does not make his work intrinsically "difficult to quantify.". If the 
figures are unavailable to the petitioner and his witnesses, then there is no realistic basis to conclude 
that the petitioner's work results in greatercost savings than that ofhis colleagues. 
A basic element of the petitioner's occupation is the maintenance and upgrading of computer 
systems. Success at that task is a sign ofprofessional competence, but does not imply eligibility for 
the national interest waiver. It cannot suffice for the petitioner (either directly, through counsel or 
through witnesses) simply to list or describe his various projects and declare them to be "original, 
ground breaking and of great significance to the field" as counsel asserts on appeal. 
Counsel claims that the director did not give sufficient weight to "independent evaluations" from 
individuals who "have never worked with the Petitioner or know him personally." As noted above, 
the letters contain similar or identical language, · indicating that the letters were not prepared 
independently. Even then, the letters did not establish the petitioner's influence in the field. At best, 
they described individual projects and then declared them to be widely influential. 
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The Board of Immigration Appeals (BIA) 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." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater ne~ for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 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 responsible for makmg the final determination regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters. from experts supporting the petition is not. 
presumptive evidence of eligibility; US CIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may ·even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). 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)). For reasons discussed above, the letters that contain the most emphatic claims regarding the 
petitioner's impact and influence are also of questionable origin, and they lack objective 
documentary support. 
Two new witness letters accompany the appeal, both from individuals who, like the petitioner, 
graduated from the business intelligence analyst/ 
developer at describes some of the petitioner's past projects in technical 
detail. The witness states: 
I have had no prior experience working with [the petitioner]. The basis for this letter 
is my independent knowledge of his accomplishments and familiarity with his 
background based on the documentation that he provided me. Therefore, I write this 
letter in the capacity of an independent authority. 
Much of the text of the letter is copied, word for word (including grammatical errors), from two 
earlier letters proyided by _ including the following passage that uses first-person 
pronouns to describe past work with the petitioner. For example, the new letter on appeal contains 
the-following paragraph on page 2: 
[The petitioner] keeps himself abreast with cutting technology by attending online 
conferences web seminars [sic]. He. is an IBM DB2 Certified Professional and has 
received training in Healthcare domain. He is skilled in working on COBOL, JCL, 
DB2 and VSAM and its tools like Endevor, File-Aid and MVS. He has received 
awards such as the ~ for project and research 
contribution to health care domain. But using this technology for is just 
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one facet of him. [The petitioner] was able to quickly assess the client's system 
capabilities and particular needs during this tenure. He took the time to carefully 
consider our business, philosophy and operating style, tailoring his approach to match 
our culture so as not to disrupt the group. He was able to· develop a clear and 
insightful view into our current situation, accurately evaluate areas in need of 
improvement and identify the processes that required strengthening.· 
The first five sentences of the above paragraph appeared on the last page of first 
letter (and in several other letters in the record). The remaining three sentences appeared on page 2 
ofhis second letter, submitted in response to the request for evidence. The passages appear to have 
been joined at random, with the reference to ''this tenure" dissociated from its original context 
(referring to a project for . There are similarities to other letters as well. For instance, the 
penultimate paragraph of the letter begins with two sentences that also appeared on the second and 
third pages of s letter. 
The final letter is from a senior developer at 
The second paragraph of the letter includes this passage: ''The basis for this letter is my independent 
knowledge of [the petitioner's] accomplishments and familiarity with his background based on the 
documentation that he provided me. Therefore, I write this letter in the capacity of an indeoendent 
authority" (emphasis in original). An almost identical passage appears in 
letter, which the AAO has shown to contain substantial language from earlier letters. The fourth 
paragraph of letter (beginning with "Even at an early stage of his career 
... ") is identical to the third paragraph on page 2 of, letter (which 
also incorporates shared language from still other letters). 
The claim that the two new witnesses wrote their letters independently is demonstrably false. The 
appeal continues a previously established pattern of different witnesses including the exact same, or 
very similar, languages in their letters. The new letters' undeniable assembly from parts of earlier 
letters demolishes their credibility as supposedly independent testimonials, purportedly derived from 
the witnesses' own personal knowledge. Given this pervasive pattern, the AAO has no reason to 
presume that the credibility issues are limited to the specific similarities that it has identified. The 
AAO will not survey each letter, sentence by sentence, isolate the copied language, and assume that 
everything that remains is wholly credible. Rather, the issue casts a shadow on all of the witness 
letters. Doubt cast on any aspect ofthe petitioner's proof may lead to a reevaluation ofthe reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. 582, 591 (BIA 1988). 
In the absence of objective, documentary evidence of the importance and impact of his work, the 
petitioner has relied predominantly on witness letters. The record contains other exhibits, but the 
significance ofthose exhibits is not self-evident or self-explanatory. The petitioner instead relies on 
witness letters. As those letters have proven to be unreliable, the waiver claim rests on no solid 
foundation whatsoever. 
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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 oftheoverall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, th~-petitioner has not 
~tablished that a waiver of the requirement of an approvect 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. 
/