dismissed EB-2 NIW Case: Software Engineering

(b)(6)
DATE: SEP 0 2 2014 OFFICE: NEBRASKA SERVICE CENTER 
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 
FILE: 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
r-- ~f~lf=;~tmtive Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We 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 a software design engineer for 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 legal brief and supporting exhibits, including copies of prior 
submissions. 
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, lOlst Cong., 1st Sess., 11 (1989). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 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 Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comrn'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. 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. !d. at 217-18. 
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. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included 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 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 ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on March 21, 2013. An 
accompanying statement described the petitioner's work and set forth his claim to qualify for the 
national interest waiver: 
[The petitioner] has been conducting vital and well-respected work in software 
development. ... Among his many accomplishments, [the petitioner] is responsible 
for the development of an important software package used by 
thousands of individuals, companies, and government entities ... primarily in the 
field of environmental measurement and research .... 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
is a global leader in the design, manufacture, and marketing of 
high quality , innovative instruments, software, and integrated systems for plant 
biology and environmental research . [The petitioner 's] work on software 
is integral to the development of international networks of stations; the 
open sourc e nature of the software allows for collaborative efforts between 
researchers in these fields of endeavor. 
In his current role, [the petitioner] utilizes his expertise in compl ex environmental 
measurement techniques and software design to provide a state-of-the-art software 
product that allows for extremely sophisticated measurement with a user-friendly 
graphical user interface (GUI) .... 
is a powerful software application for processing . data. It 
computes fluxes of momentum, carbon dioxide, water vapor , methane, and other trace 
gases with the 
The program has been requested by numerous agencies within the federal 
government. ... 
The is also being used by many government agencies and 
institutions of higher education within the United States .... 
[The petitioner ' s] work has been cited ... in a multitude of professional and academic 
journ als. 
The introductory statement mentioned the Coogle Scholar search engine, which can document the 
existence of scholarly publications as well as citations thereof. Google Scholar permits targeted 
searches of author names, but the petitioner did not submit any printouts from Coogle Scholar to 
establish that his "work has been cited ... in a multitude of professional and academic journals." 
Also, he did not submit any documentation from the fed eral agencies that are said to have requested 
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)). 
The petitioner identified eight Software Related References," specifically two articles , 
three conference abstracts, two "Lectures/Presentations /Technical reports," and a graduate thesis. 
The petitioner provided web addresses for the identified materials, but did not submit them. The 
petitioner bears the burden of proof in this proceeding. Section 291 of the Act, 8 U.S.C. § 1361; Matter 
of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner does not meet this burden by asserting 
the existence of supporting evidence and referencing a particular website. While users has the 
discretion to verify the petitioner's claims , users is under no obligation to obtain supporting 
evidence on the petitioner ' s behalf or on the petitioner ' s request. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
The petitioner ' s initial submission consists mostly of third party letters , six "from individuals who 
have worked with [the petitioner]," and five from others. (The remainder of the submission 
documents the petitioner's academic credentials rather than his subsequent employment.) 
, managing director of stated that the petitioner "was involved 
in several tasks and activities " while working for that company , and "was responsible for two main 
projects," specifically "Development of an measurement instrument 
for real-time size-segregated particles counting of airborne particulate at low and high-frequency 
monitoring " and "Application of the above technology to the field measurement 
technique." Mr. praised the petitioner's "world-class expe~tise in the area of GUI and 
application design for scientific computing and instrumentation, particu[l]arly in the 
domain." 
senior research scientist at the 
L__ ___________ _; stated: 
Dr. 
I have personally known [the petitioner] since 2004 when he started to work in 
... [The petitioner's] main task was to design and develop prototypes of 
scientific instrumentation, on which we closely collaborated .... 
One major achievement of [the petitioner] was to design and develop for the 
Italy, the prototype of an ~ 
for real-time size-segregated counting of airborne particulate at high­
frequency. This instrument was used with great success in field measurements of 
dust in China and the results of the research efforts involved in this project are 
available in [a 2007] paper. ... Following this experience, he started to work on a 
new generation of software for the application of the method, 
making it possible to exploit its power to a larger community of scientists. 
In my opinion, I can say that [the petitioner ' s] main work on the software is 
a major achievement in the scientific community for many reasons. . . . [O]ne 
fundamental step in any research area is to establish well known, recognized and 
standard procedures and methods to assure the quality of data collected worldwide . 
. . . The availability of a well-established software such as in the 
community will quickly become a 'de facto' standard , thus permitting the 
ability to considerably speed up feeding models at regional and global scale[s] with 
the best data available. 
assistant professor at the stated: 
I have known [the petitioner] since 2007 when he was Post-Doc at the University of 
and worked on a standardized software application for 
measurements processing; a tool that at the time was missing but was more and more 
at the 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
being requested and important for the international (global) scientific community. 
During his period in Italy, [the petitioner] worked on the development of an 
open source software that had high visibility in the community. 
After his working period in my University , the major focus of [the petitioner's] work 
has been the development of a real, sophisticated and important evolution 
o~ that could solve all the limits that ha[ve] precluded a world-wide use of a 
common software in the global community, a community that today 
has more than 500 sites globally with thousands of scientists involved. The 
development of the software has not only significantly contributed to the 
simplification of the complex data processing needed when these data are collected, 
but has also helped to move in the direction of a standardization of the methodologies 
- thanks to the large number of scientists that are now using 
administrator of the 
stated that the petitioner "designed the websites of the University and the 
publishing house " and performed related functions , such as "the digitalization of 
one of the University's journals." Prof. praised the petitioner's character and "unique 
technical expertise ," but offered no comment (and claimed no expertise) regarding the petitioner's 
work with 
Dr. applications scientist at Germany , stated that "[t]he 
Method exist[ ed] for many decades in the fundamental research domain," but a 
lack of adequate computer resources limited its use. He claimed that "the data processing, was till 
the launch of limited to users with high expertrisel level and software development 
capabilities." Regarding the petitioner's contribution , Dr. stated: 
The contribution of [the petiticmerl tn 1 is ()J)tstanding. He not only 
developed the very user friend! y , he also contributed 
to the unique structural design of the software. The introduction of metadata 
describing the hardware and measurement domain is tremendously improving the 
quality of measurement results. In addition, the includes a hidden expert layer 
which enables inexperienced users to process accurate results .... 
The cutting-edge software is accepted enthusiastically in the market. . 
has the potential to become the world standard processing tool for the 
Method. 
Dr. vice president of Science and Technology and Advanced Research and 
Development, Environmental, at stated: 
I first met [the petitioner] at the ... where he and his colleagues 
were developing and using a software package to calculate fluxes of carbon dioxide, 
water vapor, and energy from terrestrial ecosystems. Such calculations are complex 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
and often controversial, and they are essential for understanding how natural and 
agricultural ecosystems function. The work was funded by the with 
the goal of developing a standard computational software package that would be 
widely accepted. This is important because data are collected from research sites all 
over the world and a common accepted computational method is necessary to 
facilitate accurate data inter-comparisons and interpretations. 
is the recognized world leader in providing instruments 
supporting such measurements and the proposal was made for to support 
continued development and distribution of this software on a free and open-source 
basis .... To date, we estimate that more than 4000 copies have been downloaded 
from our website. The software is now in its fourth generation and it is rapidly 
becoming a world-wide de facto standard. 
We are continuing to develop and other products that will interface with it. 
Some of them will be separate software products that run on external computer and 
some will be software embedded in our instruments. [The petitioner] is a key 
developer in both cases. 
[The petitioner] brings unique first-hand experience with the scientific and 
operational demands of our customers and marketplace, along with a rich set of 
engineering and communications skills that allow him to develop software that serves 
our market with world-class products. He has demonstrated expertise in developing 
Graphical User Interfaces that simplify complex operations, as well as strong 
engineering skills in data management and data compression, networking, and 
communications. He has made important contributions to the success of and 
he is helping maintain its world-wide leadership as a United States company 
in a very international endeavor. 
The letters quoted above show the opinions of those who have worked with the petitioner. The 
petitioner submitted the remaining letters to demonstrate that his work has had a wider impact. 
a hydrologist at stated: 
I am a sub-contractor for the where my 
responsibilities are to provide accurate and precise evapotranspiration data to the 
This data exists as some 18 million records processed monthly for the water 
budget estimation of the well field. Over the past several years the 
software package has made several advancements that make it possible to 
assess data of this scale quickly and efficiently .... 
The development of the software has not only significantly contributed to the 
determination of evapotranspiration, (ET) in but for carbon 
cycling. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Dr. research associate professor at the University of stated that the 
petitioner's "cutting-edge expertise has the potential to become universally accepted not only in the 
United States but in other science flux networks around the world." He also stated: 
Dr. 
Dr. 
The important applications that will result from the use of will eventually 
result in a new generation of long-term, high quality data that addresses hypotheses 
that may only be studied with data from several kinds of biomes, provide an 
integrated database for synthesis and modeling studies, and facilitate distinguishing 
ecosystem dynamics due to biological and meteorological effects. 
research associate professor at stated: 
The effect of the open release of and software packages on 
covariance research has been simply groundbreaking .... [T]he biggest benefit of this 
tool is for global synthesis and intercomparison. The formal development framework 
of allows for clear versioning and documentation of individual reprocessing 
runs, which allows the incorporation of different generations of data in newer 
syntheses. Although I have developed my own reprocessing tools for the same 
purposes ... , I am currently in the process of transitioning the post-processing to 
·based workflow because of the greater flexibility, broader developer base, 
and improved intercomparability with other researchers. 
As continues to be developed, and ado ted by an increasing number of 
researchers in [the] United States and abroad ... , is destined to become a 
key research tool and play a major role in strengthening the connection between 
scientists, instrument manufacturers, modelers and government institutions using the 
data for national and global analyses and forecasting. [The 
petitioner 's] contribution to the development of this powerful tool cannot be 
overstated. 
a junior professor of geosciences at the University of stated: 
I do not know [the petitioner] personally; however, I and the members of my research 
group are intensively applying . . . [] for our basic and applied research 
projects. From this experience, I can without reservation state that the product to 
whose development [the petitioner] has significantly contributed in the last years is of 
highest quality and great relevance for the advancement of science in the 
interdisciplinary field of physical and biogeochemical land-atmosphere interactions. 
According to my sources the major focus of [the petitioner 's] work has been the 
development of . This is a highly sophisticated software product enabling 
complex data processing for the determination of turbulent fluxes of energy and 
matter in the atmospheric boundary layer. . . . as impressed me very much 
by its combination of user-friendliness, scientific soundness and technical stability. 
(b)(6)
Page 9 
NON-PRECEDENT DECISION 
definitely sets a new "gold standard" for flux processing 
software and will improve the average quality of flux data processing within the 
international biogeochemical flux community by allowing also less-experienced 
researchers to apply the latest developments of micrometeorological flux 
measurement methodology. 
a doctoral student at the stated: ' ... provides a 
user interface which is easy to use and helps to understand what individual parameters are used for. 
... The software as it is has a great potential to become the bases of globally used software in this 
field." 
Some of the writers asserted that is already in widespread use, while others attested to its 
potential to become the standard for the field. The petitioner submitted no documentary evidence to 
establish the extent of use in the field compared to other programs. 
Individual letters attesting to superiority are, by nature, anecdotal rather than definitive. 
The director issued a request for evidence (RFE) on August 7, 2013. The director instructed the 
petitioner to submit documentary evidence to establish that his past achievements justify predictions 
of future benefit to the United States. The director stated: "the evidence fails to establish the 
influence [the petitioner's] work has had on the field. For example, there is no documentary 
evidence to support the claims made in the submitted letters." This distinction between 
"documentary evidence " and "letters " indicated that the petitioner could not remedy this deficiency 
by submitting more letters. 
In response , the petitioner submitted a list of 79 employees of various U.S. government agencies, 
including the 
and stated that those named on the list have downloaded the software. 
The etitioner also submitted a letter from Dr. 
who stated: 
----------------------~ 
senior computer scientist at 
There are over 100 towers at sites around the United States measuring carbon flux 
using the technique. In the last year I have become the Data 
Manager for the . . . 
, which is responsible for 
management of the data processing for the towers located in the Americas. Currently, 
the individual tower teams process their own data to build 30 minute aggregates of 
their carbon flux data. Processing of data is incredibly complex and 
wide variation in processing techniques leads to significant variance in the processing 
results. We are in the midst of moving to a centralized processing 
infrastructure to enable consistent processing of the tower data. · The 
software has been chosen to be our platform for processing of this data centrally. The 
reasons why we have chosen is that it is a well-architected and a very 
sophisticated computer software application that would take many years to recreate 
and it is already broadly accepted within the community. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
The petitioner submitted a statement listing various papers and presentations the petitioner co-wrote, 
involving the use of the petitioner did not submit the papers themselves or 
evidence of their publication and/or presentation . The statement also indicated:' has been 
available for only about two (2) years. According to Google Scholar, as of September 10, 2013, the 
was cited in 32 scientific publications. . . . Other available programs . . . have been 
available for over 6--7 years and have below 200 citations combined." The petitioner did not submit 
a list of citing publications or a Coogle Scholar printout to support the claim. Unsupported claims 
have no evidentiary weight. See Matter ofSofjlci, 22 I&N Dec. at 165. 
The director denied the petition on November 12, 2013. The director found that the petitioner had 
satisfied the first two prongs of the NYSDOT national interest test, concerning intrinsic merit and 
national scope. The director quoted some of the letters submitted but concluded that the petitioner 
failed to submit documentary evidence to support the claims in those letters. The director stated: 
"The record contains no evidence to establish the beneficiary's work on the significance of 
or the impact of on the field as a whole." The director noted the petitioner 's 
submission of a list of government employees who had downloaded software, but stated: 
"The provided list does not include the source of this information or a statement of relevance 
associated with the names listed .... Furthermore, the list does not provide any validation that these 
individuals are regular users of or that they find the prog ram significant in the field." 
The opinions of experts in the field are not without \<.reight 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, 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. ld. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USC IS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. users may even give less weight to an opinion that is 
not corroborated, in accord with other informativn or is in any ·-vay questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (notin g that expert opinion testimony 
does not purport to be evidence as to "fact"). See also }.;fatter cfSojjici, 22 I&N Dec . 165. 
On appeal, the petitioner submits a new letter, containing additional uncorroborated statements. 
semor v1ce president of sales and marketing for environmental 
products, stated: 
The major focus of [the petitioner's] work, software, has been quickly 
adopted globally by the research community as a new standard. Thousands of 
scientists are using this softvvare for the colle ction and analysis of ecosystem fluxes of 
C02, H20, methane, and other atmospheric trace gases. . . . has been 
inte2rated into sophisticated and influential measurement networks in the U.S. 
and other nehNorks and individual research 
(b)(6)
Page 11 
sites . The adoption o 
advances contained in 
NON-PRECEDENT DECISION 
his soitware is proof of the scientific value and technological 
software .... 
and the related product that has just been recently developed 
- of which [the petitioner] is also the project manager - has enabled 
and our representative in China to win a 
competitive bid and contract of $1.6 million to the 
would NOT have been able to win this contract without 
these revolutionary, influential and innovative products-
Without corroboration, Mr. 
22 I&N Dec. at 165. 
claims have no evidentiary weight. See Matt er of Soffici , 
The petitioner's appellate brief contends that there were "inconsistencies between what was sought 
in the RFE and the basis of the denial, " and "questions whether this denial was meant for another 
individual given that the denial refers to a different occupation." Regarding the latter issue, the 
director 's denial notice referred , on page 2, to the petitioner as "an engineer in the field of mining ." 
Page 1, however, more accurately called the petitioner "a software design engineer." Later pages 
refer repeatedly to and identify, by name, the writers of several letters in the record. The 
appellate brief acknowledges as much, stating: "later language specifically referring to letters of 
support submitted by experts in the field indicates that the content of the decision may be designed 
for [the petitioner]. " The phrase "may be designed" 
implies that doubt remains, but the discussion of 
the petitioner's submissions is so specific to the case at hand that it is clear that the denial was not 
"meant for another individual. " The single erroneous reference to "mining" does not nullify or 
discredit the remainder of the decision, or imply that the director wrote the decision for a mining 
engineer who, like, the petitioner, claims to have "been influential in the development of " 
The brief states: 
[The petitioner] addressed concerns in the RFE by submitting information pertaining 
to his publications related to .... [The petitioner] then outlined the 
widespread usage of his software by more than 3,000 individuals representing 
research institutions, private companies, and governmental agencies . ... Finally , [the 
petitioner] cited 32 scholarly works that were the result of a Google Scholar search. 
All of the above statements refer not to evidence the petitioner submitted, but to claims offered 
without supporting evidence in response to the RFE. 
The brief further states: 
The government seems to have issue with [the petitioner's] direct contribution [to] the 
development of hen it states: 
(b)(6)
Page 12 
NON-PRECEDENT DECISION 
An individual with such an important and critical role in the development of a 
product such as should be able to provide documentary evidence of 
his involvement with the program. However, the record contains no such 
documentation .... 
Again the issue seems not to be with the creativity, utility, and importance of 
.. but rather with evidence that [the petitioner] is the person responsible 
for its mere existence. 
Admittedly and unfortunately, [the petitioner] did not feel proof of his design and 
authorship of was an issue in this petition. It was assumed to be a given. 
. . . It should be noted that direct evidence of authorship was not requested in the 
RFE .... [S]creenshots from within sections of the software code could confirm [the 
petitioner's] authorship o ~ 
The petitioner submits printouts of elements o code, each of which identifies the etitioner 
as its author. This evidence corroborates the claim that the petitioner wrote portions of the 
program, but it does not address the other concerns specified in the denial notice. 
The brief presents an incomplete discussion of the director's concerns. While the director did cite a 
Jack of evidence of the petitioner's authorship of the software, the director also stated (on page 3 of 
the decision): 
A letter from states, "The effect of the open release of and 
software packages on research has been simp! y 
groundbreaking." Again, the Service notes that a program with such a notable impact 
should have generated significant documentary evidence that could corroborate the 
claims of letters such as this one from However , a review of the 
record shows no supporting documentation. 
Additional letters . . . further discuss the beneficiary and his contributions to the 
project however none of the claims made in these letters have been 
supported by documentary evidence. The record contains no evidence to support the 
beneficiary 's work on the significance of or the impact of 
on the field as a whole. 
The denial of the petition did not rest entirely or primarily on a finding that the petitioner failed to 
show that he helped to write the software; however, this is the only issue that the petitioner 
addresses on appeal. 
The brief contends that the denial notice raised issues not previously asserted in the RFE, but the 
RFE included this passage: "While the record contains letters from several individuals .. . , there is 
no documentary evidence to support the claims made in the submitted letters." Thus , in the RFE, the 
director informed the petitioner that the problem was not the content of the letters, but the lack of 
- - ---------- - ···-- - - ---.,--··--.. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
corroborative documentary evidence. The director later denied the petition on fundamentally the 
same basis. The petitioner ' s submission on appeal does not remedy this finding or show that it was 
either insignificant or immaterial. The petitioner's appeal, therefore, does not address or overcome 
the stated ground for denial of the petition. 
The petitioner has established that he played a role in the creation of well-received computer 
software, but this success, by itself, does not establish eligibility for the national interest waiver. By 
statute, exceptional ability in one's field is not automatic grounds for exemption from the job offer 
requirement. The petitioner has claimed that software is such an improvement over prior 
products that its adoption and continued development is in the national interest , but the petitioner has 
not submitted documentation to support this claim, or to establish that the petitioner is responsible 
for the most significant or important elements of 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT , 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." Jd. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole"). 
As is clear from 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. 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act,; 
Matter ofOtiende, 26 I&N Dec. 128. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.