dismissed EB-2 NIW Case: Translation/Interpretation

PUBLIC COPY 
WQing data deleted to 
prevent clearl~ cnbvatranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
LIN 05 201 50970 
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. $ 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
fiohert P. Wiemann, Chief 
w 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability. The petitioner seeks employment as a Chinese-Spanish 
translator. 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 sought, but 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. 
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 for the underlying immigrant classification. We will 
revisit this issue elsewhere in this decision. The sole issue raised in the denial 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, 
10 1 st Cong., 1 st Sess., 1 1 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 199 I), states: 
The Service [now Citizenship and Immigration Services] believes it appropriate to leave the 
application of this test as flexible as possible, although clearly an alien seeking to meet the 
Page 3 
[national interest] standard must make a showing significantly above that necessary to prove 
the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption from, or waiver of, the job 
offer will be in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 2 15 (Commr. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective'' is used 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. 
We also note that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt 
by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
or her field of expertise. 
In a statement accompanying the initial submission, the petitioner described his work: 
From 1977 to 1992, I was engaged in diplomatic interpreter work for fifteen years. At first, I 
worked in the Latin American Bureau of the Central Foreign Liaison Department. Then in 
1986, I was accepted into the Chinese People's Institute of Foreign Affairs (CPIFA). . . . 
J 
My specialty was to research the Latin-American political and economic situation, provide 
reports to the national leadership organization and certain research organizations. . . . 
So many times I took the post of the interpreter or the recorder for national senior leaders of 
China, including The P.R. China President Yang Shangkun, Premiers Zhao Ziyang and Li 
Peng, National People's Congress Chairman Wan Li . . . and so on. In the diplomatic field of 
China, only outstanding diplomatic officers can take the post of interpreting and recording for 
national supreme leaders of China, and also for the post of accompanying foreign senior 
leaders during their visits in China. These works strongly implied my level of excellence and 
intelligence. . . . 
From 1992 to 2002 . . . I successively served in several companies. . . . 
[M]y ability for proficiently control many languages played the very major role. . . . 
Consequently my interpret job is thought on stand out. . . . 
1 cannot say whether 1 can supply ideas for U.S. diplomacy and the international situation, 
though I had my experiences of research international issues in many years. Also I don't 
mention whether my business experiences of 10 years do have the opportunity to display in 
USA. Only for skilled grasping three languages - the English, Spanish and the Chinese, I 
believe the America is the right place for my abilities. This is because, as everyone knows, 
that the better communications between people is very important.. 
(Sic.) The petitioner added that his spouse, a physician and acupuncturist, has several Latino clients who 
require the petitioner's services as a translator at her clinic. The petitioner did not claim that this work is 
national in scope; rather, he asserts that, lacking permanent resident status, he is reluctant to take on jobs of 
greater scale, many of which would require international travel. The petitioner stated that his spouse has filed 
an immediate relative immigrant petition on his behalf.' 
The petitioner submitted several witness letters with his initial filing. Most of the letters date from 2003, two 
years before the filing of the present petition, and all the letters were originally submitted to support an earlier 
petition that the petitioner had filed in 2003.~ Several of these letters are from the etitioner's former 
professors at Beijing University of Foreign Studies. For example, Professor 
 discussed the 
petitioner's diplomatic career, but offered no evidence that the United States Department of State seeks the 
petitioner's services as a diplomat. ~r0f-s only comment about the petitioner's future prospects is the 
observation that Spanish teachers are in demand at American universities. The record does not establish the 
petitioner's credentials as a language teacher (which is not the same thing as a translator). Other professors 
praised the petitioner's expertise as a translator and diplomat, but offered no specific information as to how 
the petitioner would benefit the United States beyond the general assertion that the petitioner possesses 
valuable skills. 
= , the petitioner's former university classmate and an "Alternate Observer to the Organization of 
American States (OAS) at the Embassy of the People's Republic of China in Washington DC," described the 
petitioner's diplomatic career, stating: 
As far as I know, after [he] graduated, [the petitioner] was engaged in China's foreign affair 
organizations as the Spanish translator and the officials for 15 years. He had gone abroad as 
That petition, receipt number LIN 02 226 51832 was approved on March 30, 2007. The alien petitioner concurrently 
filed a Form 1-485 adjustment application, receipt number LIN 07 253 53271, that is currently pending at the Nebraska 
Service Center. The alien petitioner has a second A-number, , associated with the adjustment application. 
2 
 The director denied the earlier petition, receipt number LIN 03 226 51723, on April 4, 2005. The petitioner appealed 
that denial ,and the AAO dismissed the petitioner's appeal on July 19, 2006. 
the Chinese diplomat for two times. Many times he used to work for the senior leaders of our 
country, as a interpret or recorder, as well as the foreign senior leaders, including presidents, 
premiers, and speakers and so on. Also many times he single-handed accompanied with the 
important foreign guests to visit around many cities of China as a Spanish translator and an 
official representative of our country both. 
(Sic.) As noted above, the petitioner entered private business after 1992. 
 Some of the witnesses are 
individuals who have worked with the petitioner during this time. 
 general manager of DCH S.A. 
Argentina, stated that the petitioner "made himself so valuable to our company" with "his language and social 
skills." director and representative agent of Wenzhou Atlantic Leather Chemistry Ltd., Argentina, 
cited figures regarding demand for Chinese translators, and stated that the petitioner "frequently helped the 
local Chinese people as a Spanish translator and a business consular [sic]." 
Another witness, 
 is an acupuncturist with no demonstrated expertise in translating. = 
discussed the petitioner's career, and asserted that "persons who can directly carry on the communication 
between Spanish and Chinese are extremely rare." 
The petitioner's initial filing does little more than establish his credentials and offer the general assertion that 
his language skills could be useful. Therefore, on October 4,2005, the director informed the petitioner that it 
could not suffice for the petitioner simply to list his accomplishments or qualifications. The director stated 
that the petitioner must submit evidence to establish "contributions to the field of translation which others in 
the field, preferably with whom [the petitioner had] never studied or worked, recognize as having influenced 
the field." 
In response, the petitioner stated: "I have filled a blank in some field for US. (Without me, the Chinese to 
Spanish and Spanish to Chinese translation service in the American Translators Association would be blank. 
Also Midwest Association of Translators and Interpreters is the same situation.)" The petitioner submitted no 
evidence to support these claims, although the petitioner stated that he had written to the American 
Translators Association (ATA) and was awaiting a response. The petitioner did not explain why being the 
only ChineseISpanish translator available to those associations should qualify him for a national interest 
waiver. The scarcity of a given skill set is not necessarily a determining factor for the waiver. 
On January 9, 2006, the director issued a second request for evidence, instructing the petitioner to submit the 
response (if any) that the petitioner had received from the ATA. The director also requested "additional 
evidence that attests to [the petitioner's] contributions to the field of translation or interpretation." The 
director noted that "character references" cannot suffice in this regard. 
In response, the petitioner submitted a letter from ATA Executive Director., who stated 
that the petitioner "is one of our 9,500 members of ATA. I would like to stress that we currently have only 
two members listed in our online directory for the language pair of Chinese to Spanish. [The petitioner] is 
one of them. He is also the only one listed in this language pair in the Midwest Association of Translators 
and Interpreters, an ATA chapter." 
Page 6 
The petitioner also submitted a letter from, Manager of Diners Professional Translation Center, 
who stated that he hired the petitioner to translate "a twenty-six page Spanish document into Traditional 
Chinese" after having "a hard time finding a competent translator for this project." s business is 
located in Hong Kong, and yet he was able to engage the petitioner's services thousands of miles away in 
Indiana. The success of this project, despite the distances involved, sheds little li ht on why it is in the 
national interest for the petitioner to work as a translator in the United States. Rather, s letter seems 
to suggest that the petitioner is able to perform prompt and satisfactory work for clients even thousands of 
miles away. Under these circumstances, it is far from clear how the petitioner's location is a matter of 
national interest sufficient to warrant an exemption from immigration requirements that, by statute, typically 
apply to aliens in the petitioner's field. 
The petitioner submitted examples of translation work he had undertaken for the Northeast Tennessee Valley 
Regional Industrial Development Association. The materials are in Chinese and English. 
 There is no 
indication that he translated the materials into Spanish, or that the client required the petitioner's services to 
translate its English-language materials into Spanish. This raises another point: the petitioner has not 
established the extent of the demand for Chinese-to-Spanish translation services or Spanish-to-Chinese 
translation services in the United States. Low demand may well account for the claimed scarcity of Chinese- 
Spanish translators in the United States. 
The director denied the petition on August 18, 2006, stating that the petitioner had failed to demonstrate his 
past impact in the field of translation. On appeal, the petitioner describes previously submitted exhibits and 
discusses various projects. For instance, the petitioner states that he prepared a translation of The Rules of 
Procedure of the Inter-American Defense Board for the Organization of 
assertion, the petitioner states: "Please refer to the letter of thanking from 
Observer of The Organization of American States (OAS)." 
 As noted previously, 
 originally 
introduced himself as the etitioner's former university classmate, a pre-existing relationship not mentioned 
in the new letter. s new letter is on the letterhead not of the OAS, or the inter-American Defense 
Board, but the Embassy of the People's Republic of China. The petitioner's preparation of this translation, 
therefore, benefited not the United States (which, as an OAS member nation, presumably already possessed 
the document), but rather his native China. 
The record indicates more demand for the beneficiary's work among clients in China than in the United 
States, and the petitioner still has not shown how such work is of particular benefit to the United States. The 
petitioner, instead, continues to stress the relative scarcity of Chinese-Spanish translators in the United States, 
without any consideration for the possibility that this scarcity may have more to do with a lack of demand 
than with some higher level of skill or accomplishment necessary to translate between those two languages. 
Even if translating between Chinese and Spanish requires skills beyond those of translators of other language 
pairs, such skills would still be basic traits required of all Chinese-Spanish translators, rather than indicators 
that Chinese-Spanish translators benefit the United States more than translators of other language pairs. 
The petitioner has documented an accomplished diplomatic career, followed by success as a translator for 
various business clients in China and Latin America. The petitioner has not, however, demonstrated that he 
Page 7 
stands out among Chinese-Spanish translators. He has, instead, fallen back on the claim that there are not 
many other Chinese-Spanish translators to begin with. A shortage of qualified workers in a given field, 
regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given 
that the labor certification process was designed to address the issue of worker shortages, a shortage of 
qualified workers is an argument for obtaining rather than waiving a labor certification. Matter of New York 
State Dept. of Transportation at 2 1 5, 2 1 8. 
The petitioner states: "I believe some of the projects I done or doing, are not able to be performed by ordinary 
people even they also hold multiple-languages" (sic). Considering that the crux of the petitioner's waiver 
claim revolves around his linguistic skills, the AAO cannot ignore many anomalies of grammar and syntax to 
be found in the petitioner' s statements throughout this proceeding. 
As is clear fiom a plain reading of the statute, it was not the intent of Congress that exceptional ability should 
exempt an alien fiom 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 specialty, 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. 
Beyond the decision of the director, another issue prevents approval of the petition. The AAO maintains plenary 
power to review each appeal on a de novo basis. 5 U.S.C. 8 557(b) ("On appeal from or review of the initial 
decision, the agency has all the powers which it would have in making the initial decision except as it may 
limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 
(9th Cir. 1 99 1). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Dor 
v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
As noted previously, the petitioner seeks classification as an alien of exceptional ability. "Exceptional ability" by 
itself is not sufficient for classification under section 203(b)(2) of the Act. That statute requires not merely 
"exceptional ability," but rather "exceptional ability in the sciences, arts, or business." The regulations at 
8 C.F.R. 5 204.5(k) and subsections thereof echo this language. Therefore, not every occupation can qualiQ an 
alien under the "exceptional ability" clause; only those that can reasonably be deemed to fall within the sciences, 
the arts, or business. See, e.g., United States v. Menasche, 348 U.S. 528, 538-39 (1 955) (stating that every 
clause and word should be given effect, if possible, in interpreting a statute). Because Congress saw fit to 
modify the phrase "exceptional ability" with "in the sciences, arts, or business," we must conclude that this 
modification limits the application of the statute. Otherwise, the "sciences, arts, or business" clause would be 
without meaningful effect. The petitioner has not claimed or demonstrated that his work falls within the 
sciences, the arts, or business. 
Furthennore, the regulation at 8 C.F.R. 8 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien 
must meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. The 
director, in this proceeding, never specifically acknowledged the petitioner's satisfaction of more than two of 
the six listed criteria. The AAO has reversed the director on one of those two holdings, as shown in the 
AAO's decision of July 19,2006: 
Evidence in the form of letter(s)fiom current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation 
for which he or she is being sought. 
The director concluded that the petitioner has met this criterion. We cannot, however, agree 
with this assessment. 
When reviewing the petitioner's employment experience, one must keep in mind experience 
in jobs that require fluency in both Chinese and Spanish is not necessarily the same thing as 
experience "in the occupation" of Chinese-Spanish translator. 
The petitioner claims to have conducted "translation and research" for the Chinese 
government in Beijing, at the Central Foreign Liaison Department from July 1977 to August 
1986 (interrupted by a position as a protocol secretary at the Chinese Embassy in Santiago, 
Chile from September 1983 to December 1985), and at the China People's Institute of 
Foreign Affairs from August 1986 to August 1992. 
The petitioner submits employment verification letters from the National Center of Talented 
Personnel Exchanges of the (Chinese) Ministry of Human Resources. One letter indicates 
that "[flrom September 1977 to August 1986, [the petitioner] worked in the Central Foreign 
Liaison Department, holding the position of the Spanish translator." This is less than nine 
years; the admitted 27-month interruption to work in Chile, the petitioner spent less 
than seven years in his position as a Spanish translator. 
Regarding the petitioner's work from 1986 to 1992, another letter from the Ministry of 
Human Resources states that the petitioner "worked in the Chinese People's Institute of 
Foreign Affairs, holding the position of the Deputy Chief of Asia, Africa and Latin-American 
Affairs Section." The letter does not indicate that the beneficiary worked as a "translator" 
during this time, or that Spanish translation occupied a substantial amount of the petitioner's 
time in the position. While Spanish is widely spoken in Latin America, the same is not true 
of Africa and Asia. Thus, there is no basis for a finding that the petitioner was, in effect, a 
full-time translator from 1986 to 1992. 
The petitioner submits photographs showing himself with various high-ranking government 
officials from China and other countries. The petitioner states that several of these 
photographs show him acting as an interpreter at meetings between Chinese officials and 
officials from Mexico, Ecuador and Argentina. The photographs establish the petitioner's 
presence, but not the context. Several other photographs show the petitioner in meetings with 
delegations from Japan, Nepal, and Australia. The petitioner has never claimed to be a 
Japanese or Nepalese language interpreter, or to be fluent in those tongues. It appears, 
therefore, that he was present not as an interpreter, but as an official of the Asia, Africa and 
Latin-American Affairs Section. Thus, we have no reason to presume or to conclude that the 
petitioner accumulated full-time experience as a translator during his time as deputy section 
chief. The petitioner was clearly a ranking diplomat from 1986 to 1992, but diplomacy 
involves far more than merely acting as an interpreter. 
Subsequent letters show that the petitioner was appointed as a "Commercial Representative in 
Buenos Aires" for Beijing Engineering Consulting Corporation in 1993; the duties for this 
position involved "industrial, agricultural, trade, finance, real estate, information consultant 
services and other activities." Once again, there is no evidence that the petitioner's time in 
this position counts as full-time experience as a translator. 
In response to a request for evidence, the petitioner asserts that "[flrom 1977 to 1992, 1 was 
engaged in [the] diplomatic field for fifteen years," but the petitioner seeks classification as 
an exceptional translator, not as an exceptional diplomat. Once again, we observe that a 
diplomat is not simply a translator or interpreter, and experience as a diplomat is not full-time 
experience in the occupation of a translator. 
Based on the above, the AAO finds that the petitioner has not established exceptional ability in his field, or 
even that the exceptional ability clause, which is statutorily limited to the sciences, arts, and business, even 
applies to his field. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternative 
basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely 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.