dismissed EB-2 NIW Case: Telecommunications And It

MATTER OF A-R-L-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 15,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a small business owner, seeks classification as an individual of exceptional ability. 
See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The 
Petitioner also seeks a national interest waiver of the job offer requirement that is normally attached 
to this immigrant. classification. See§ 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. 
Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required 
job offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director, Texas Service Center, denied the petition and two subsequent motions. The Director 
found that the Petitioner did not qualify for classification as a member of the professions holding an 
advanced degree, and that he had not established that a waiver of a job offer would be in the national 
interest. 
The matter is now before us on appeal. In his appeai, the Petitioner argues that he qualifies as an 
individual of exceptional ability and satisfies the national interest waiver requirements. 
! 
I 
Upon de novo review, we will dismiss the:appeal. 
', 
I. LAW 
To establish eligibility for a national inter~st waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences, arts, or business. Because this classification normally requires 
that the individual's services be sought by a U.S. employer, a separate showing is required to 
establish that a waiver of the job offer requirement is in the national interest. 
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 
Matter of A-R-L-
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States, and whose services in the sciences, arts, 
professions, or business are sought by an employer in the United States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... the Attorney General1 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 iri the United States. 
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). 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998) (NYSDOT), set forth several factors which must be considered when evaluating a 
request for a national interest waiver. First, a petitioner must demonstrate that he or she seeks 
employment in an area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that 
the proposed benefit will be national in scope. !d. Finally, the petitioner seeking the waiver must 
establish that he or she 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 hiriges on prospective national benefit, a petitioner's assurance 
that he or she will, in the future, serve the national interest cannot suffice to establish prospective 
national benefit. !d. at 219. Rather, a petitioner must justify projections of future benefit to the 
national interest by establishing a history of demonstrable achievement with some degree of 
influence on the field as a whole. !d. at 219, n.6. 
II. ANALYSIS 
Although the Petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, seeking 
classifiqtion as an individual of exceptional ability in business, the Director focused on whether the 
Petitioner qualified as a member of the professions holding an advanced degree. The Director 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Matter of A-R-L-
determined that that the evidence provided was not sufficient to establish that the Petitioner held an 
advanced degree, as an advisory evaluation of his education credentials was not submitted. The 
submitted evidence reflects, however, that the Petitioner has met at least three of the six exceptional 
ability standards under the regulation at 8 C.F .R. § 204.5(k)(3)(ii). For example, the Petitioner provided 
academic records, letters and employment verifications showing more than ten years of full-time 
experience, occupational certifications, and membership in professional associations that satisfy the 
regulatory criteria at 8 C.P.R. § 204.5(k)(3)(ii)(A), (B), (C), and (E). In addition, the documentation 
offered was commensurate with a degree of expertise significantly above that ordinarily encountered 
among small business contractors. For instance, the Petitioner has accrued 20 years of experience in 
his field, received a Master's degree in Business Administration, and has earned various noteworthy 
occupational certifications such as Registered Communications Distribution Designer (RCDD). 
Accordingly, the Petitioner qualifies for the underlying classification as an individual of exceptional 
ability in business. 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 according to the 
three-prop.ged analysis set forth in NYSDOT. 
Pursuant to section 203(b)(2)(A) of the Act, individuals of exceptional ability are generally subject 
to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional 
ability. NYSDOT, 22 I&N Dec. at 218, 222. Therefore, whether a given individual seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that individual cannot qualify for a national interest waiver just by demonstrating a 
degree of expertise significantly above that ordinarily encountered in his field of expertise. The 
national interest waiver is an additional benefit, separate from the classification sought, and therefore 
eligibility for the underlying classification does not demonstrate eligibility for the additional benefit 
of the waiver. 
The Petitioner proposes to continue his work as chief executive officer (CEO) and owner of 
d.b.a. a telecommunications and information technology systems 
contracting company in the region of Texas. installs structured 
cabling, school intercom systems, paging systems, video surveillance, access control systems, and 
telephone systems. In addition, the company offers networking, outsourcing, and design services. 
The submitted documentation shows that the Petitioner's work as an entrepreneur and owner of a 
small business that provides cabling, networking, security, and telecommunications services to its 
customers is in an area of substantial intrinsic merit. Accordingly, the record supports the Director's 
determination that the PetitiQner meets the first prong of the NYSDOT national interest analysis. The 
two findings at issue in this matter are (1) whether the Petitioner established that the benefits of such 
work are national in scope as required under the second prong of the NYSDOT national interest 
analysis, and (2) whether the Petitioner demonstrated that his past record of achievement is sufficient 
to meet the third prong. 
The Director determined that the scope of the Petitioner's work, and his impact and influence on the 
field did not satisfy the second and third prongs of the NYSDOT test. Specifically, the Director noted 
that the Petitioner's business activities did _not have a substantial impact beyond the region where he 
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M,atter of A-R-L-
worked, and that the record lacked specific examples of how the Petitioner's contributions have 
influenced the field. 
With regard to the national scope of his proposed benefit, the Petitioner contends that providing 
information technology systems and related services is national in scope because "[I]ntemet access 
is considered interstate commerce." The Petitioner submits a 2015 news release from the Federal 
Communications Commission (FCC) entitled "FCC Adopts Strong, Sustainable Rules to Protect the 
Open Internet." The news release concerns new rules for fixed and mobile broadband that protect a 
fast, fair, and open Internet, but it does not focus on contractors such as the Petitioner whose work 
helps enable his local clients' online connectivity. Furthermore, simply engaging in interstate 
commerce does not, without more, indicate that a company's benefits are national in scope. See, 
e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S. Ct. 348, 358, 13 L. Ed. 
2d 258 (1964) (holding that "the power of Congress to promote interstate commerce also includes 
the power to regulate the local incidents thereof, including local activities in both the States of origin 
and destination"). Although the Petitioner's company may provide Internet access to its local 
clients, the FCC's regulation of the Internet as interstate commerce does not alone establish the 
national scope ofhis specific business activities. 
The Petitioner offers a letter from of a 
stating that his company hired "to provide networking and 
telecommunications 
services in Texas" and that the services allowed his company "to 
communicate and interact with suppliers, clients and corporate offices in the states of Illinois and 
North Carolina." The Petitioner's appellate submission includes additional letters from companies 
located in Texas such as the 
and 
The letters' authors all indicate that provided cabling, networking, and 
telecommunication services that "allowed [their companies] to access a broad scope of information, 
but more importantly, communicate and interact" with suppliers, clients, corporate offices, donors, 
' or consultants from across the country. None of the authors claimed their companies' online 
communications and interactions were nonexistent or limited prior to contracting 
services. While the Petitioner has improved his customers' communications systems, there is no 
indication that his work will have any national implications beyond the companies with which he 
conducts business. · 
In addition, a July 2013 letter from mentioned that 
provided "networking, security, communications, and sound" contract work for the 
Networking Operating Center in Texas. 
Furthermore, a July 2013 letter Project Manager, identified 
as a vendor "in the that performed work for the 
and school districts. noted that installed systems 
that "have helped the schools and their students to be more secure (Surveillance System), better 
communicated (Intercom System) and more efficient in their classroom teaching (Lightspeed 
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Matter of A-R-L-
System)." The Petitioner argues that his company's projects for the aforementioned school systems 
"impart national-level benefits." 
The Petitioner provides 16 purchase orders and invoices from his suppliers and clients reflecting that 
conducts or generates business in multiple states scattered across the United States. For 
example, the Petitioner submitted invoices billed to from in Arizona 
reflecting total charges of $171.80 and from in Wisconsin reflecting 
charges of $1,578.19. The Petitioner contends that such invoices are evidence that he and his 
company "have a national impact on the U.S. economy." With respect to organizations outside of 
Texas with which conducts business, the economic impact of sales and purchases 
affecting individual organizations does not become "national in scope" based solely on their diverse 
locations. The Petitioner has not shown that his company's level of economic activity has a national 
effect. 
The Petitioner indicated that his work as an entrepreneur and owner of offers a national 
benefit through the creation of job opportunities for U.S. workers. Specifically, the Petitioner 
claimed that he "built the company up from a 
3 man operation into a succ.essful business that brings 
in over $1 million dollars in annual revenue with 30 employees and contractors." An unsigned copy 
of Form 1120, U.S. Corporation Income Tax Return, for 2012 reflected "gross receipts 
or sales" of $870,540 and "salaries and wages" of $63,427. On April 19, 2016, we issued a request 
for evidence (RFE) asking the Petitioner to "provide objective documentary evidence to support 
[his] statements regarding sustained 
record of growth and job creation." The Petitioner 
was requested to submit "official records from the Internal Revenue Service (IRS) and the Social 
Security Administration (SSA) reflecting the number of employees ·and contractors compensated by 
... and the amount of such compensation." Instead, the Petitioner provided uncertified 
tax documentation prepared by his company for submission to the IRS. The documentation offered 
reflects payments by to its workers over a nine year period: 
2007 
2008 
2009 
2010 
2011 
2012 
2013 
2014 
2015 
IRS Farms W -2, 
Wage and Tax Statement 
for Employees 
3 totaling $10,343.24 
3 totaling $23,693.70 
4 totaling $12,955.46 
7 totaling $33,065.24 
7 totaling $77,613.85 
10 totaling $92,563.49 
16 totaling $150,732.26 
18 totaling $163,552.89 
13 totaling $197,276.03 
IRS Forms 1 099-MISC 
Miscellaneous Income 
for Contractors 
2 totaling $46,726.94 
2 totaling $14,310.00 
2 totaling $33,189.25 
7 totaling $49,411.01 
15 totaling $101,120.22 
22 totaling $129,791.49 
27 totaling $234,933.21 
21 totaling $134,729.92 
17 totaling $135,67L18 
Total Yearly 
Remuneration 
$57,070.18 
$38,003.70 
$46,144.71 
$82,476.25 
$178,734.07 
$222,354.98 
$385,665.47 
$298,282.81 
$332,947.21 
The Petitioner argues that the national scope of his "business is evident because the company has 
created U.S. jobs in the which is one of the poorest regions in the United States." 
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Matter of A-R-L-
For example, a December 2013 letter from owner of indicated 
that his company "subcontracted to install the structured cabling at the 
and that the project generated "12 full time jobs during the contract duration." A May 
2016 letter from explains that he "assigned six full time electricians to perform ... tasks to 
support the scope of work for [the Petitioner's] company," which also utilized six workers on the 
project. The Petitioner submits a graph utilizing data compiled by the Federal Reserve in 
showing that the unemployment rate in Texas from July 2011 - May 2016 was 
about three percentage points higher than the unemployment rate in the state of Texas. In addition, 
the Petitioner provides information from reflecting that the average hourly rate for 
a cable installer/repairer in Texas is $10.64. The Petitioner offers a pay rate chart for 
"technicians" and "helpers" indicating that they· receive hourly compensation that is 
about 20 percent higher than that of other- cable installers/repairs and Texas minimum wage 
recipients. 
We note that Congress has established the EB-5 program to bring new investment capital into the 
country and to create new jobs for U.S. workers. See section 203(b)(5) of the Act, 8 U.S.C. 
§ 1153(b)(5). This classification makes immigrant visas available to foreign nationals who invest 
the requisite amount of qualifying capital in a new commercial enterprise that will benefit the United 
States economy and create at least 10 full-time positions for qualifying employees. 
( 
The Petitioner argues that "the is underserved with respect to information 
technology systems providers" and that there are no ·RCDD-certified individuals in his region. The 
record includes a certificate showing that the Petitioner received his RCDD designation in October 
2011. Information provided about the certification indicates that RCDDs have "demonstrated 
knowledge in the design, integration and implementation of information technology systems (ITS) 
and related infrastructure." The appellate submission includes a September 2014 email from 
U.S. South-Central Region Director, 
stating that there are "no other RCDDs in the or 
areas, but that "there could be some who've opted to be excluded from a directory." In 
addition, the Petitioner provides information reflecting that participates in the 
which provides training and certification for business partners that install and 
deploy products. The Petitioner also submits online search results from a "Find a Partner" 
search on website identifying as the company's only partner in 
Texas. Lastly, the record includes "company search results" from the 
website reflecting that is among only ten companies in licensed to 
provide security services. Although the preceding documents demonstrate .the substantial intrinsic 
merit of his work, they do not establish its national scope or influence on the field as a whole. 
With regard to his qualifications and past record of achievement, the? Petitioner provided his training 
certifications from 
and the In addition, the Petitioner submitted 
recognition certificates from his former employers and a certificate 
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Matter of A-R-L-
identifying as an "Authorized Network Installer" for and an award from 
recogmzmg as a ' for 2013." While particularly 
significant awards may serve as evidence of the Petitioner's impact on the field, the Petitioner has 
not demonstrated that his recognition certificates have more than institutional significance and are 
indicative of influence on the field as a whole. 
On appeal, the Petitioner points to his 20 years of work experience, recognition in the field, and 20 
professional certifications. For instance, the Petitioner notes that his RCDD certification "is only held 
byj 8,000 worldwide" and represents "one of the highest design credentials in the [information 
technology] systems industry." A May 2012 news release from stated: "The RCDD exam 
requires between 100-200 hours of study from 
recommends studying the manual in conjunction with a exam preparation 
course." Occupational experience, professional certifications, and recognition for achievements are 
· elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) , (C), and (F) respectively . However , in this matter, the Petitioner must also 
demonstrate eligibility for the additional benefit of the national interest waiver. As previously 
mentioned, eligibility for the underlying classification does not demonstrate eligibility for the 
additional benefit of the waiver. Without evidence demonstrating that the Petitioner's work has 
affected the field as a whole, employment in a beneficial occupation such as an ITS contractor does 
not by itself qualify him for the national interest waiver. 
The Petitioner indicates that the process of obtaining a labor certification would be "impossible , as 
[he] is the owner and founder of the petitioning company and a labor certification cannot be self­
petitioned." The Petitioner further argues that with respect to entrepreneurs , users is attempting 
"to apply outdated and inapplicable standards (created largely for employees)." The inapplicability 
or unavailability of a labor certification, however, cannot be viewed as sufficient cause for a national 
interest waiver; a petitioner still must demonstrate that he will serve the national interest to a 
substantially greater degree than do others in his field. See NYSDOT, 22 r&N Dec. at 218, n.5. 
In addition, the Petitioner explains that he meets the requirements of a "Qualified Entrepreneur" as 
defined in section 4802 of Senate Bill 744, the "Border Security, Economic Opportunity, and 
Immigration Modernization Act." That proposed legislation, however , did not become law. 
The Petitioner mentions a USers directive to clarify the standard by which a national interest waiver 
may be granted to foreign inventors, researchers, and founders of start-up enterprises. On November 
20, 2014, Jeh Johnson, Secretary ofthe U.S. Department of Homeland Security, issued a memorandum 
to Leon Rodriguez, Director ofUSCIS, entitled "Policies Supporting U.S. High-Skilled Businesses and 
Workers."2 With respect to the national interest waiver, the memorandum states: "This waiver is 
underutilized and there is limited guidance With respect to its invocation. I hereby direct USCIS to issue 
2 
Memorandum from Jeh Charles Johnson, Secretary, OHS, Policies Supporting US High-Skilled Businesses and 
Workers (Nov . 20, 20 14), https: //www .dhs.gov /sites/defaul t/files/publications /14 _ 1120 _memo _ business_ actions. pdf 
7 
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Matter of A-R-L-
guidance or regulations to clarify the standard by which a national interest waiver can be granted, with 
the aim of promoting its greater use for the benefit of the U.S. economy." 
The Petitioner requests approval of his petition in light of this directive to users to improve its 
guidance and '"to enhance opportunities for foreign inventors, researchers, and founders of start-up 
enterprises wishing to conduct research and development and create jobs in the United States." 
USCIS, however, has not yet issued any new guidance or regulations clarifying the national interest 
waiver eligibility standards in respon~e to the Secretary's memorandum, and the memorandum does not 
itself set forth any specific guidance. A concern about underutilization of the national interest waiver 
benefit in general is not indicative that any particular decision users has previously issued constituted 
an error of law or policy. The existing NYSDOT guidelines require the Petitioner to establish that the 
benefits of his work are national in scope and that he will serve the national interest to a substantially 
greater degree than would an available U.S. worker having the same minimum qualifications, and he 
has not done so in this matter. See NYSDOT, 22 I&N Dec. at 217-18. With regard to following the 
guidelines set forth in NYSDOT, USCIS, by law, does not have the discretion to ignore binding 
precedent. See 8 C.P.R.§ 103.3(c). 
A. National in Scope 
The Petitioner has not shovm that the benefits of his proposed work as a CEO and company owner 
are national in scope. The Petitioner demonstrated that Supernova has performed cabling, 
networking, security, and telecommunications services for its various customers located in the 
but there is no indication that his company's projects offer benefits at a national 
level. In NYSDOT, we found a civil engineer's employment to be national in scope even though it 
was limited to a particular region, but that finding hinged on the geographic connections between 
New York's bridges and roads and the national transportation system. While information 
technology systems allow users to reach into the national marketplace, the Petitioner has not shown 
that a small business that installs telecommunications infrastructure and services a limited pool of 
clients produces benefits at a level that is national in scope. Affecting individual clients' 
connectivity does not become "national in scope" based on their utilization of the Internet to conduct 
interstate commerce. Although information technology services have value to the 
company's client base, this relates to the substantial intrinsic merit of the proposed work, which is 
not in question. In addition, the Petitioner has not demonstrated that his company's level of job 
creation and wage growth will offer sufficient positive economic effects in the or 
other regions of the United States as to have a national effect. Accordingly, we agree with the 
Director's 
determination that the Petitioner does not meet the second prong of the NYSDOT national 
interest analysis. 
B. Serving the National Interest 
The Petitioner has not demonstrated that he has had sufficient influence on his field to satisfy the 
third prong of the NYSDOT analysis. As stated above, that prong requires a petitioner to 
demonstrate that he or she will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. To do this, a petitioner must 
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Matter of A-R-L-
establish "a past history of demonstrable achievement with some degree of influence on the field as a 
whole." !d. at 219, n. 6. In this instance, the Petitioner has not claimed or established that he has 
influenced his field of endeavor. 
The Petitioner contends that his past record in starting a successful ITS business, holding RCDD 
certification, creating local jobs, and generating over $1 million in revenue justifies projections of 
future benefit to the national interest. There is no indication, however, that his business activities or 
ITS designs have been widely emulated by other companies in the industry, have increased 
economic activity in areas outside of Texas at a level affecting national markets, or have otherwise 
influenced the field as a whole. The letters of support from the Petitioner's customers and clients 
describe the contract work that performed on various projects, but do not offer specific 
examples of how the Petitioner's work has affected the industry or ITS field as a whole. 
In addition, the Petitioner states that it is unlikely that an available U.S. worker would have more 
than 20 years of ITS experience, over 20 professional certifications, and the necessary qualifications 
to "develop and run [a] company -that directly employs over 12 people." While such 
accomplishments help qualify the Petitioner for the underlying classification as an individual of 
exceptional ability, they do not show that he will serve the national interest to a substantially greater 
degree than do others in his field. 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner in 
this case has not established by a preponderance of the evidence that the benefits of his proposed 
work are, national in scope or that he has a past record of demonstrable achievement with some 
degree of influence on the field as a whole. Therefore, the Petitioner has not demonstrated that a 
waiver of the job offer requirement will be in the national interest of the United States. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-R-L-, ID# 77263 (AAO Sept. 15, 2016) 
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