remanded EB-2 NIW Case: Business

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Washington, DC 20529 
identifying+acll*db 
pmvent ckarly u- 
invasion of persapl PiWcJ) 
U. S. Citizenship 
and Immigration 
Services 
.,vr" 
PJ .; 
Office: VERMONT SERVICE CENTER Date: JAN 16 2008 
EAC 06 089 53192 
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. 8 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
v 
%Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
director's decision; however, because the petition is not approvable, it is remanded for further action and 
consideration. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. tj 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner is a project 
manager at Ideal Steel Supply Corp., New York, New York. 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, counsel protests that the denial was unacceptably vague, and therefore the petitioner had no reasonable 
opportunity to respond to specific findings or remedy specific deficiencies. The AAO agrees with the director 
that the petition cannot be approved as it now stands, but counsel is correct that the decision lacked necessary 
detail. 
When a Service officer denies an application or petition filed under Sec. 103.2 of this part, the officer shall 
explain in writing the specific reasons for denial. 8 C.F.R. tj 103.3(a)(l)(i). 
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. 
Page 3 
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, 1991), 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 
[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. 21 5 (Comm. 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 offerllabor 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 qualifL 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
or her field of expertise. 
The director's denial notice contains only two specific references to information in the record, identifying where 
the petitioner earned his master's degree and referring to the petitioner as a "business professional." The decision 
contains no other discussion of the merits of the petition, and no discussion of the evidence submitted in support 
of that petition. 
Page 4 
The decision notice appears to be a template, with some paragraphs prefaced by labels such as "labor shortage 
discussion." A template can be a useful starting point for a decision, but it cannot sufice as the decision itself. 
The AAO finds nothing in the record that would establish eligibility or warrant approval of the petition. The 
petitioner has relied primarily on letters from acquaintances and satisfied clients. Some of these letters are, 
themselves, extremely vague and therefore of little value. Others point to individual instances in which the 
petitioner participated in transactions involving international trade, such as the letter from 
President of Sky Mind Co., Ltd., indicating that the petitioner helped the company 
into China. The evidence shows that the petitioner has had success as a business consultant, but success is not 
presumptive evidence of eligibility. The record also contains no objective evidence of the impact of 
newspaper columns the petitioner has written. 
Furthermore, counsel has emphasized the petitioner's past track record, but the record contains very little 
information about the petitioner's current work at Ideal Steel Supply Corp. The petitioner has not clarified how 
he will purportedly serve the national interest in the future; e.g., the petitioner has not specified whether he 
intends to remain at Ideal Steel Supply Corp., or he seeks instead to work in some other capacity. The 
petition offers almost nothing regarding the petitioner's prospective plans, and rests instead on the petitioner's 
"track record" which is, itself, of unproven value. 
Therefore, this matter will be remanded. The director must issue a new denial notice, containing specific findings 
that will afford the petitioner the opportunity to present a meaningful appeal. As always in these proceedings, the 
burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's decision is withdrawn; however, the petition is currently unapprovable for the 
reasons discussed above, and therefore the AAO may not approve the petition at this time. 
Because the petition is not approvable, the petition is remanded to the director for issuance of a 
new, detailed decision which, if adverse to the petitioner, is to be certified to the Administrative 
Appeals Office for review.