remanded EB-2 NIW Case: Electrical Engineering

adentifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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IN RE: 
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 1153(b)(2) 
ON BEHALF OF PETITIONER: 
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. 
Administrative Appeals Office 
b 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration.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. 5 1153(b)(2), as an alien of exceptional ability in the arts, science or business. The petitioner seeks 
employment as a senior electrical design engineer at Transocean Offshore Deepwater Drilling Company. 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 has not established that he qualifies 
for classification as an alien of exceptional ability, or 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 that: 
(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 regulation at 8 C.F.R. 5 204.5(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. We note that the 
regulation at 8 C.F.R. 9 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above 
that ordinarily encountered" in a given area of endeavor. 
In denying the petition, the director discussed the evidence submitted in support of the petitioner's claim of 
exceptional ability, and stated: "The self-petitioner has failed to distinguish himself as an alien of exceptional 
ability." Counsel, on appeal, protests that the director "did not accurately evaluate the evidence presented with 
the submission and give it the appropriate weight." We concur with counsel's assertion. For instance, the 
director found that the petitioner's status as a senior member of the Institute of Electrical and Electronics 
Engineers (IEEE) fails to satisfy 8 C.F.R. 9 204.5(k)(3)(ii)(E), which relates to membership in professional 
associations. The director, however, acknowledged materials in the record, which show that only 8% of IEEE 
members qualify for senior member status (which is "the highest [grade] for which application may be 
made"). This information is consistent with a finding that a grade of senior member reflects a degree of 
expertise significantly above that ordinarily encountered among electrical engineers. 
The director's unfavorable finding regarding the petitioner's claim of exceptional ability appears to rest on a 
superficial reading of the evidence. 
Regarding the other element of the petition, specifically the petitioner's application for a national interest 
waiver of the job offer requirement, the director offered only two sentences of substantive discussion of the 
evidence: 
The self-petitioner responded [to a notice of intent to deny] with a written personal statement 
and letters stating that the application process should be approved to allow the self-petitioner 
to change jobs. Aside from a copy of his doctoral degree certificate, no other significant 
evidence articulating how the proposed benefit would be national in scope or how the 
national interest would be adversely affected if a labor certificate were required for the alien 
was submitted. 
On appeal, counsel states: 
The examining officer did not accurately evaluate the evidence presented with the submission 
and give it the appropriate weight. Moreover, the officer does not seem to have actually read 
or paid any attention whatsoever to the response provided by the self-petitioner to the 
Service's Notice of Intent to Deny. Indeed, the officer seems to have become confused with 
an entirely different case. . . . [Tlhe self-petitioner has never indicated an interest or desire to 
change jobs. . . . [Tlhe officer wrongly claims [that] part of the response was a copy of the 
self-petitioner's doctoral degree certificate, which is indisputably erroneous . . . since the self- 
petitioner has not been awarded any doctoral degree. 
The record bears out counsel's assertions. The director's very brief discussion of the merits of the petitioner's 
waiver claim appears to be based on the facts of a different petition entirely. 
The above findings warrant the withdrawal of the director's decision, and the remanding of the proceeding for 
a new decision that more accurately takes into account the evidence of record. At the same time, we note 
another factor that appears to merit the director's attention and consideration. 
Counsel has indicated that a brief would follow within thirty days. 
 Counsel has since acknowledged, 
however, that no brief was ever submitted. Citizenship and Immigration Services records provide a likely 
explanation for counsel's failure to supplement the appeal. The petitioner filed the appeal on July 22, 2005. 
Only days later, on July 25, 2005, the director approved another 1-140 petition that the petitioner's employer 
had previously filed - with an approved labor certification - on the alien's behalf. That petition sought to 
classify the beneficiary as a professional or skilled worker. Its priority date is December 22, 2000, the date 
that the employer filed Form ETA-750 with the Department of Labor. The approval of the earlier petition 
may well explain the petitioner's failure to pursue the appeal now under discussion. 
Page 4 
If the director issues a request for evidence relating to the present petition, the director may choose to advise 
the petitioner that a withdrawal of this petition would be without prejudice to any adjustment or visa 
application proceeding that may arise from the approved petition. The two petitions are separate matters 
relating to two different immigrant classifications. 
In the event that the petitioner chooses to pursue this matter further, the director may, and the Administrative 
Appeals Office will, take into account the petitioner's approved labor certification when considering the 
petitioner's waiver request. It is the petitioner's burden to demonstrate that it would be in the national interest to 
waive the job offerllabor certification requirement that, in this instance, has already been met. Approval of a 
national interest waiver in this proceeding would not in any way expedite the petitioner's adjustment of status 
based on the already-approved petition discussed above, and denial of a waiver would not imply ineligibility for 
the lesser classification under which the employer's petition has already been approved. 
Therefore, this matter will be remanded. The director may request any additional evidence deemed warranted 
and should allow the petitioner to submit additional evidence in support of its position within a reasonable period 
of time. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 8 136 1. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.