remanded EB-2 NIW Case: Publishing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
EAC 03 161 501 13 
U.S. Citizenship 
and Immigration 
ice: VERMONT SERVICE CENTER Date: JUL 0 8 2005 
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. 5 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 office. 
&L--~obert P. Wiemann, Director 
Administrative Appeals Office 
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 w-ill be 
withd~awn 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions holding an advanced 
degree (the petitioner does not specify). The petitioner seeks employment as a co-publisher and co-editor of 
Attawassul News, an Arabic-language newspaper published in New York. The petitioner is also a taxicab driver. 
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. 
On appeal, counsel states that the petitioner filed a "skeletal" petition, and that the director erred by failing to 
issue a request for evidence. 8 C.F.R. 5 103.2(b)(8) requires the issuance of such a notice in instances where the 
record contains no prima facie evidence of ineligibility and the evidence submitted does not fully establish 
eligibility. The director's subsequent decision fails to address crucial elements, and therefore, even if the 
petitioner had addressed every element discussed in the denial notice, the record would still lack some necessary 
evidence. The director must, therefore, issue a request for evidence pursuant to 8 C.F.R. $ 103.2(b)(8) and afford 
the petitioner an opportunity to respond to that notice, prior to the issuance of a new decision. 
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. 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. The director, in denying the petition, states that the petitioner "submitted 
nothing to indicate that he is the holder of an advanced degree or a Bachelor's degree plus five years 
progressive experience." 
Page 3 
The director, in denying the petition, did not give any consideration at all to whether the petitioner qualifies for 
classification as an alien of exceptional ability. 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 qualie as 
an alien of exceptional ability, an alien must satisfy at least three of six criteria set forth at 8 C.F.R. 
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. The director 
must give the petitioner the opportunity to meet these requirements. We note that, if it is the petitioner's 
contention that the six criteria do not readily apply to his occupation, it is his burden to show why they do not 
apply, and to provide persuasive comparable evidence to show that he has a degree of expertise significantly 
above that ordinarily encountered in the field of newspaper publishing. (The petitioner has not argued that his 
work as a taxicab driver forms the basis of his national interest waiver request.) 
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 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). 
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 "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. 
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-Western 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. 
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. 9 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.