remanded EB-2 NIW Case: Newspaper Publishing

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: . - Office: VERMONT SERVICE CENTER 
EAC 03 161 50136 r 
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. 3 1 153(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 ofice. 
LJ wobert P. Wiemann, Director 
Administrative Appeals Office ! 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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withdrawn and the petition will be remanded for further action and consideration.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 record of proceeding, as it now stands, does not contain sufficient evidence to warrant approval of the 
petition. At the same time, however, the director's decision is too flawed to be upheld in its current configuration. 
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 co-publisher and 
co-editor of Attawassul News, an Arabic-language newspaper published in 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 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 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. 
8 C.F.R. 5 204.5(k)(2) defines "advanced degree" as any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign 
equivalent degree followed by at least five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. In this instance, the petitioner received his bachelor's degree only a few 
months before the petition's May 1, 2003 filing date. Therefore, the director concluded, the petitioner does not 
qualify as a member of the professions holding an advanced degree. The director, in denying the petition, "a 
National Interest Waiver requires an advanced degree or a Bachelors degree plus five years progressive 
experience ." 
The director is correct insofar as the petitioner did not qualify as an advanced degree professional as of the 
petition's filing date. Indeed, counsel acknowledged as much in a February 21, 2005 letter. The director 
erred, however, in stating that the national interest waiver is available only to advanced degree professionals. 
Aliens of exceptional ability may also request the waiver, and the director failed to consider whether the 
petitioner qualifies as an alien of exceptional ability. (The director had requested information regarding this 
classification, but the subsequent denial notice does not address the issue at all.) 
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8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as a degree of expertise significantly above that ordinarily 
encountered in the particular field of endeavor. To qualify as an alien of exceptional ability, an alien must 
satisfy at least three of six criteria set forth at 8 C.F.R. 5 204.5(k)(3)(ii). 8 C.F.R. 5 204.5(k)(3)(iii) states that, 
if these six criteria do not readily apply to the alien's occupation, the petitioner may submit comparable 
evidence to establish the alien's eligibility. Counsel has contended that the standards at 8 C.F.R. 
5 204.5(k)(3)(ii) do not readily apply to the petitioner, because the petitioner is an "entrepreneur" rather than 
a worker in a "specialized field. Prior to issuing a new decision, the director must offer the petitioner the 
opportunity to explain, in detail, why the nature of the petitioner's work makes it impossible for him to satisfy 
at least three of the six criteria. The petitioner must also provide comparable evidence to show that the 
petitioner has a degree of expertise significantly above that ordinarily encountered in the field of newspaper 
publishing. The "expertise" mentioned here must be expertise in, or directly relevant to, newspaper 
publishing. It cannot suffice for the petitioner to argue, for instance, that the petitioner is a law student, and 
therefore he has more expertise in the law than most publishers. If the petitioner intends to argue that his 
work as an "entrepreneur" includes, but is broader than, newspaper publishing, then it is his burden to provide 
some kind of concrete description of what he intends to do in the United States. It cannot suffice simply to 
claim that the petitioner is an exceptional entrepreneur and will, therefore, excel at whatever venture he 
decides to undertake. 
From the issue of the underlying immigrant classification, we turn to the national interest waiver. 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 Comtnittee 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). 
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 (CIS)] 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. 215 (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 "prospective7' 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. 
In discussing the first prong of the national interest test set forth in Matter of New York State Dept. of 
Transportation, the director stated: "The beneficiary is a second year law student at Fordham University. The 
beneficiary's field of endeavor is of substantial intrinsic merit." The record, as a whole, does not clearly 
identify the petitioner's prospective field of endeavor. While the petitioner is a law student, the petitioner's 
arguments revolve around his involvement as a newspaper editor and publisher. Furthermore, we note that the 
petitioner must be eligible for the benefit sought as of the petition's filing date. See Matter of Katigbak, 14 I&N 
Dec. 45,49 (Reg. Comm. 1971). See also 8 C.F.R. 5 103.2(b)(12), which states that the response to a request for 
evidence must establish eligibility as of the petition's filing date. In this instance, the petitioner was not even 
notified of his acceptance into law school until more than a month after the petition's filing date. If the petitioner 
desires that the director take into account the petitioner's legal education, and his activities while studying law, 
then the proper course of action would be for him to file a new petition with a later filing date that would permit 
consideration of that information. 
The petitioner has asserted that his newspaper serves the national interest by serving as a voice of moderation 
within the Arab community in New York. The director, in discussing this newspaper, described the newspaper 
but did not explain why these attributes disqualified, or failed to qualify, the petitioner for a waiver. A discussion 
of "citations" appears to be more germane to the work of scientific researchers than to newspaper publishers. 
The petitioner contends that that moderate Arab voices must be heard, and this point is well taken, but it does not 
follow that publishing a moderate Arabic newspaper automatically qualifies the publisherleditor for a national 
interest waiver. The director should afford the petitioner the opportunity to demonstrate that his newspaper has 
shaped the debate about Arab-Westem relations, and the role of Arabs in American society, beyond the local 
level. General arguments about the importance of the media or specialty publications cannot suffice, because 
Congress has established no blanket waiver for publishers or editors of such publications. 
The director's notice of decision contains several valid points, but as a whole, the flaws in that decision prevent us 
from upholding that decision. The director must issue a new request for evidence, followed by a new decision 
that more hlly takes into account the facts of the petition. 
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. 5 1361. 
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, regardless of the outcome, 
is to be certified to the Administrative Appeals Office for review.