dismissed EB-2 NIW Case: Strategic Management And Business Development

(b)(6)
DATE: NOV 2 8 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE: 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: 
SELF-REPRESENTED 
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:Uwww.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, 
�f���trative Appeals Office 
www .uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion to reopen the proceeding, which the director dismissed. The 
matter is now before 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 in the field of strategic management and business development. When he 
filed the petition, the petitioner was a global product marketing manager for 
_ 
Georgia. He has since asserted that he seeks to work as an independent consultant. 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 statement and copies of previously submitted materials. 
Prior to the filing of the appeal, attorney represented 
the petitioner. The appeal, however, includes no evidence of Mr. continued involvement, 
and the appeal does not include a newly executed Form G-28, Notice of Entry of Appearance as 
Attorney or Representative, as required by the regulation at 8 C. P.R. § 292.4(a). We therefore consider 
the petitioner to be self-represented. 
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. 
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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, lOl st Cong., 1st Sess., 11 (1989). 
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. Comm'r 1998) 
(NYSD01), 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 iJ}terest would thus be entirely speculative. /d. 
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 I-140, Immigrant Petition for Alien Worker, on July 2, 2012. The 
petitioner's electronic filing of the petition included no supporting evidence, and therefore the 
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director issued a request for evidence (RFE) on November 2, 2012, instructing the petitioner to 
"submit evidence to establish that [his] past record justifies projections of future benefit to the 
nation." 
The petitioner's response to the RFE included an introductory letter that reads, in part: 
Petitioner . . . is an expert with exceptional abilities in the field of Strategic 
Management and Marketing .... [The petitioner has experience] only shared by a 
handful of people in visual communications which incorporates interactive 
Whiteboarding, Large surface Touch technology and Collaboration. [The petitioner] 
was one of the original experts/pioneer[s] on defining not only the market 
requirements, the standards, [and] the overall solution for corporate customers but so 
defin[ing] and develop[ing] the corporate market itself .... 
The same letter indicated that the petitioner "qualifies for National Interest waiver because .. . there 
would be a substantial disruption to the efforts, if he were not able to perform the services" for his 
employers and clients. 
The petitioner submitted documentation of his educational credentials and compensation, as well as 
past performance evaluations indicating that he "Fully Meets Expectations" or "Exceeds 
Expectations." These materials are from prior employers such as 
rather than from The employers also gave the petitioner awards for his roles 
in completing s ecific projects such as "trouble-shooting and providing solutions for the world's 
first and "teamwork on resolving th� 
Academic degrees, high compensation, and recognition within the field are all factors that can 
support a finding of exceptional ability in the sciences, the arts, or business under 8 C. P.R. 
§ 204.5(k)(3) (ii)(A), (D) and (F), respectively. Even if these exhibits show that the petitioner 
qualifies as an alien of exceptional ability, section 203(b)(2)(A) of the Act states that aliens of 
exceptional ability are generally subject to the job offer requirement. 
etitioner submitted two unsigned letters, attributed to former colleagues. The letter attributed 
to , vice president of marketing at , reads, in part: 
[The petitioner] is one of the very few exceptional individuals who understand the 
corporate workplace for Interactive Technology I Visual Communications and the 
effort it takes for a company to successfully build and sell its products in this market 
segment. I was there when he first evangelized the interactive touch technology and 
its benefit to the corporate world. At that time very few, if any, corporate customers 
even knew what an interactive whiteboard is let alone its benefits and how to use it. 
He is truly a pioneer in this rapidly growing and popular field, since touch phones, 
touch tablets and touch flat panels are becoming commonplace. 
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[The petitioner] and I were colleagues together at is 
the global leader in Interactive Whiteboard solutions and invented the world's first 
interactive whiteboard. I was the Manager of Experiential Marketing responsible for 
putting together global marketing collateral, tradeshows and events. (The petitioner] 
was part of the small Product Management team that was responsible for bringing 
new products to the market. .. . 
During my tenure at there was ·a particular product that ... went through 
three project managers, three product managers and $3 million in cost getting to 
market - and still had not successfully launched. (The petitioner] took over the 
product and brought it to market in less than a year. He sold enough of the product to 
break even on the investment and then - based on customer feedback -recommended 
the changes to be put in for the next version. This product - one of the interactive 
whiteboard lines- was the first standalone, market-focused product produced for the 
corporate market. It was simple and easy to use Gust as his research had showed) and 
helped finally penetrate the corporate market. 
Another part of [the petitioner's] work experience and effort I would like to highlight 
is the work he did with At the time had bought a company called 
which provided web conferencing services to its customers. [The petitioner] 
.. . led the integration effort with . Since collaboration I conferencing 
were WebEx's strength and interactive whiteboarding was strength, the 
goal was to marry these products together to find the best of breed solution .... The 
result is the seamless integration which provides board users ease of use and 
simplicity when they are using the product on a or on a desktop 
computer. ... 
Almost all of the customers [the petitioner] researched on and worked with are 
enterprises found in the Fortune 50 or 100 and Global 100 companies. . . . His 
research and his interactions with Fortune and Global 500 customers help define the 
market requirements and the corporate white boarding standards that are being used 
today. 
The second letter, attributed to , computer systems analyst at reads, in part 
I have known [the petitioner] since we both worked at 
ago .... 
several years 
He really has the play book for corporate whiteboarding and collaboration and can 
benefit a number of organizations if he's given a chance to work and live here 
permanently. 
[The petitioner's] combination of technical expertise and technology insight earned 
during his career in the telecommunications industry and his natural business savvy 
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were strong assets used to help lead the new Corporate Market Development group at 
that time at . He helped move towards 
new customers and industries not previously explored as it continued to expand into 
the corporate market. ... To this day, much of underlying 
business plan, direction and strategy to expand into the corporate and other vertical 
market[s] can be traced back to [the petitioner's] personal interest and passion to 
effect this change at 
To give you an idea of [the petitioner's] knowledge and expertise I would like to 
provide you with two concrete examples ... of many projects and companies he's 
worked with to help define business use cases and the customer collaboration needs. 
. . . fThe petitioner] was the main point of contact from and worked with 
Senior Director to define the requirements for the World's first 
Management Consulting meeting space using Interactive Whiteboards . . . branded 
by the company. The first opened in UK. Soon other 
European cities followed before configurations were developed in the US, 
Brazil, Singapore and South Mrica. [The petitioner] then worked [with] other 
Management Consulting companies in developing similar models for their meeting 
spaces .. .. [T]hese companies because of their size and influence became not only 
the standard for collaboration but also helped influence and shape the future of 
alliance: 
[The petitioner] knew that large flat panels would play a significant role in 
interactive technology solutions going forward. He reached out to 
to embed one of his products into the panel. . . . [The 
petitioner] had left to join by then but came out with the 
integrated flat panels that [the petitioner] had envisioned and worked on - the 
integrated panel that is being sold today. 
The petitioner submitted no documentary evidence to support the claims in the two unsigned letters. 
He also submitted no evidence from to establish that his then-current work was of 
comparable significance to what he claimed regarding his former employment at other companies. 
The director denied the petition on April 29, 2013, stating that the petitioner had satisfied only the 
first prong of the NYSDOT national interest test, concerning substantial intrinsic merit. The director 
concluded that the petitioner's "work and his contributions will be primarily limited to a certain 
geographic region." The director listed the petitioner's evidentiary exhibits and quoted from the two 
submitted letters, and concluded that "the documentation submitted does not substantiate that the 
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petitioner's technological innovation has been significantly implemented or widely adopted as a tool 
in the business sector on a national level." 
The petitioner filed a motion to reopen the petition on May 30, 2013. The petitioner stated that: "we 
may not have highlighted my main achievements properly that satisfy the NIW [national interest 
waiver] requirements, even though the evidence was there." The petitioner asserted: 
[T]he business methodology within that I 
developed with a very few colleagues of mine . . . at . . . is 
very unique and is of significant value both at the national and international level. 
We developed not only a completely new way [of] working but one that provides 
benefits nationally and specially to people and company employees who work in 
different locations in the US and all over the world. 
I and my colleagues developed and perfected this methodology and solution for the 
corporate market, which is now being used by and hundreds of their 
customers across the US and the world. They are now calling this solution 'freestorm 
solutions' and have branded the overall methodology as 
This methodology when adopted by companies has provided numerous benefits 
including the following: 
Increased Productivity 
Reduced Costs 
Enhanced collaboration among dispersed employe[es] across the US or 
globally 
Our team actually developed the _ that 
clearly showed improvement in all three phases. Because of the confidentiality 
agreement ... that I signed when I worked for I can't 
disclose the actual information or the to you but have attached actual 
customer comments and statements that discuss the above three features .... 
The work I did and the business methodology I developed with my team has changed 
the way meetings and collaboration take place today. . . . [T]he Interactive 
Whiteboarding and methodology has inspired others to offer 
similar products and solutions .... 
The petitioner submitted a "Quick facts and stats" page from web site, 
claiming that "[m]ore than 175 Fortune 1000 organizations in North America have adopted 
" and that "[ m ]ore than 125 blue-chi (Fortune 50 0) 
companies in over 50 countries around the world are using 
Promotional materials discuss the solutions that provided to 
individual clients. This information does not establish the extent to which the petitioner is 
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responsible for the company's success, because it does not show what role the petitioner played in 
the clients' adoption of the solutions. 
Before the denial of the petition, the petitioner's evidence did not address his employment at 
On motion, the petitioner stated: 
biggest competitor, 
them penetrate the corporate market 
player prior to my hiring). 
decided to hire me to help 
was purely an education market 
hired me because of the business solution I had developed and my skills 
and expertise in the Meeting Room1 space in the US and global 
basis. They hired me for the sole purpose of helping them enter the corporate market 
utilizing and leveraging this solution I had developed, my knowledge of the industry 
and my contacts in the Fortune 500 and global 1000 customers .... 
I .. . was responsible for the entire success of the corporate group and the corporate 
market entry from helping develop corporate products to marketing them 
to training the sales team to forming alliances and developing the overall strategy. 
(Emphasis in original.) The petitioner submitted an unsigned letter attributed to 
president of l Global Business and Government Division. The letter reads, in part: 
[The petitioner] was initially responsible for the Product Management role and was 
subsequently promoted to our Strategic Alliances Team. 
[The petitioner] was highly sought after by for his outstanding 
background and skill sets. He provided invaluable insight into our product 
positioning and overall direction for the Business & Government Division. 
Additionally he brought with him the knowledge of the market but also key alliances 
and contacts within the consulting and complementary solutions provider arena. 
The petitioner states that, owing to confidentiality agreements, his employers cannot give him credit 
for what he has developed, and he is limited in his ability to describe the solutions that he developed 
for those employers. He claims, nevertheless, that hired him so that he could put into 
place "the solution [he] had developed" for a direct competitor, for whom 
the petitioner had signed such a confidentiality agreement. Owing to the petitioner's claims of 
confidentiality, the record offers few specifics about what the petitioner actually did for 
except that it involved whiteboards and visual conferencing. 
The petition rests predominantly on what the petitioner accomplished while at 
even though, when he filed the petition, he had already left that company for 
On motion, the petitioner indicated that he had since left to become an 
independent consultant. The petitioner claimed to have clients throughout the United States, all of 
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whom "would suffer setback if [the petitioner] was not able to share and help them with their 
product and strategic management plans." 
The director dismissed the petitioner's motion on September 20, 2013. The director described the 
petitioner's claims and the evidence he had submitted, and concluded: 
[T]he petitioner failed to submit corroborating evidence, such as letters from 
corporations that have implemented this innovative 
to substantiate his claim. The evidence does not substantiate that the 
petitioner's developed unique business methodology was widely adopted by other 
companies in the United States and globally. 
The director further concluded that the petitioner had not submitted evidence to establish his role in 
developing the , or to show the results that it has achieved for clients who adopted it. 
The petitioner appealed the director's decision on October 18, 2013, stating that he had learned 
about the decision but had not received a copy of it. As a result, the appeal addressed elements of 
the director's first decision from April 2013, rather than the second decision from September 2013. 
The petitioner submitted copies of previously submitted materials, and a statement which essentially 
repeated the statement that had accompanied the earlier motion to reopen. 
On September 26, 2014, we sent the petitioner a copy of the director's second decision, so that he 
could meaningfully appeal that decision rather than repeat his response to the first decision. The 
petitioner has responded by asserting that he has "provided enough evidence," including his resume, 
letters, and information about to meet the requirements spelled out in 
NYSDOT. The petitioner states: 
The work and business methodology [that I] developed and teach others is now 
gaining momentum. The use and benefits of this are now well recorded in the 
space. Panel Manufacturers such as [and] 
have all jumped on this bandwagon and are producing Interactive Displays 
of their own. Because of this a whole suite of compl[ e ]mentary products have been 
developed by other companies as well. can now connect and 
show content wirelessly from a cell phone or tablet onto the Interactive Whiteboard 
and Interactive Display. This already has had a huge impact on the national interest 
of the U. S. by developing new products that have created more jobs on a national 
scale. 
Whatever the impact of interactive whiteboard software and related technology, the petitioner has 
not established that he is responsible for that impact. He does not claim to have played any role in 
inventing or developing the technology. His self-described specialty is marketing and sales. The 
petitioner's claimed success in selling this technology has been of benefit to his employers, but the 
petitioner has not shown that he has been, to any significant extent, responsible for the wider success 
of the interactive display industry (for example, by producing documentary evidence that the 
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products sold poorly until the petitioner conceived new marketing strategies to create new demand). 
Identifying past clients does not show that the petitioner played a significant role in the success of 
those clients. 
The petitioner has provided little information about his specific contributions and the methodology 
that he claims to have pioneered. The petitioner's claims of confidentiality do not relieve him of the 
burden of proof in this proceeding. 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 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. at 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to 
the field of endeavor." !d. 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 29.1 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.