sustained EB-2 NIW Case: Green Technology

(b)(6)
DATE: t.ii\Y {}7 2015 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a 
non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
r��������tmt;ve Appeals Ofhce 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will sustain the 
appeal and approve the petition. 
The petitioner1 filed Form 1-140, Immigrant Petition for Alien Worker, on April 16, 2010, seeking to 
classify the beneficiary 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 in the sciences, the arts, or business. The 
petitioner, a manufacturer and distributor of recycled toner cartridges and inkjets, seeks to employ the 
beneficiary as a senior research and development technician. 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 beneficiary qualifies for classification as an individual of 
exceptional ability in the sciences, but that the petitioner had not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a brief and supporting exhibits. 
I. Law 
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 determined that the beneficiary qualifies as an individual of exceptional ability in the 
sciences. 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. 
1 The petitioner on appeal is the successor-in interest to the org anization that filed the petition, 
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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." 
In reNew York State Dep't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Conun'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Jd. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Jd. 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. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the beneficiary's past record justifies projections of future benefit to the national interest. /d. at 
219. The petitioner's assurance that the beneficiary will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The term "prospective" is included here to require 
future contributions by the beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. ld. 
The regulation at 8 C.P.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 beneficiary seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that beneficiary cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
II. Facts and Analysis 
An introductory statement submitted with the petition on April 16, 2010, reads, in part: 
[The beneficiary] is a highly skilled inventor and researcher of demonstrated 
exceptional ability, whose track record of achievements has been recognized and 
acclaimed in a "green " technology field of science that involves the redesign and 
remanufacturing of printer cartridges .... 
[The beneficiary's 1 technical contributions to the field of cartridge remanufacturing 
( have enabled 
[the petitioner] to produce and distribute remanufactured cartridges, reusing up to 
80% of its customers' original printer cartridge components and extracting 
significantly more printed paper per cartridge, thereby reducing the amount of waste 
disposal into the environment. Given the urgency and priority the U.S. government 
has placed on environmental research and preservation, together with (the 
beneficiary's] patented work in cartridge remanufacturing which has already enabled 
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NON-PRECEDENT DECISION 
[the petitioner] to eliminate over 1.2 million cartridges into landfills each year, it is 
without doubt in the national interest to waive the requirement that [the petitioner] 
seek a U.S. worker to fill his position. 
The director, in the denial notice, acknowledged that the petitioner met the first two prongs of the 
NYSDOT national interest test by establishing that the beneficiary's occupation has substantial 
intrinsic merit and produces benefits that are national in scope. The issue is whether the petitioner 
has satisfied the third NYSDOT prong by establishing that the beneficiary has a past history of 
demonstrable achievement with some degree of influence on the field as a whole. 
In a March 5, 2010, letter submitted with the petition, president of the petitioning 
company, stated that the petitioner's "entire remanufacturing process is driven by [the beneficiary], " 
whose efforts "have earned numerous awards for our company from 
further stated that the beneficiary was listed as an inventor on two 
approved patents involving and had three additional pending patent applications. 
The petitioner submitted evidence of the beneficiary's patents. 
The petitioner submitted several industry/trade publication articles highlighting the petitiOning 
company's success as an innovator in the toner cartridge remanufacturing industry. While they do 
not mention the beneficiary by name, the articles attribute the petitioner's success to several key 
innovations, some of which correspond to the beneficiary's approved and pending patent 
applications. For instance, an article that appeared m and 
discusses an innovative method for 
As additional evidence of the significance of the beneficiary's work, the petitioner submitted letters 
from representatives of companies with whom the petitioning company does business, attesting to 
the beneficiary's expertise and the importance of his work. The petitioner also submitted letters 
from experts in the field providing opinions on the beneficiary's work based on a review of his 
patents and other materials provided by the petitioner. In one such letter, 
Professor of Industrial and Manufacturing Engineering at stated 
that the beneficiary's "widely adopted" patents and extensive experience "render him among the 
very few world-wide professionals to lead in this critical area of the U.S. infrastructure vis-a-vis 
waste management. " Many of the letters expressed the opinion that the beneficiary's past 
innovations had significantly impacted the field of printer cartridge recycling and remanufacturing. 
In a May 28, 2010, Request for Evidence (RFE), the director requested additional documentary 
evidence that the beneficiary has a past record of specific prior achievement, including some degree 
of influence on the field as a whole, that would justify projections of future benefit to the national 
interest. In response, the petitioner submitted an updated letter form including a 
detailed discussion of the beneficiary's approved and pending patents, and stating that the 
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beneficiary has "a level of contribution well above others holding comparable research or technical 
positions in the industry." 
The director denied the petition on February 15, 2011, acknowledging that the beneficiary "has 
received several patents in the field " and that the submitted reference letters indicate he is "highly 
qualified, " but concluding that the beneficiary's "impact has been limited." On appeal, the petitioner 
contends that "the beneficiary's multiple patented innovations have resulted in profoundly beneficial 
effects upon the U.S. national interest." The petitioner submits a table showing estimates for the 
costs saved and reduction in landfill use resulting from each of the beneficiary's innovations, which 
included four approved U.S. patents as of the time of appeal. In a separate statement, the petitioner's 
CEO, provides technical details about each of the beneficiary's innovations, including 
relevant patent infor mation, the beneficiary's role in developing the innovation, and an estimate of 
the innovation's financial and environmental impact. For example, stated that one of 
the beneficiary's patented inventions "[a]llows [the petitioner] to 
further states that the 
beneficiary's innovations are critical to the company's ability to employ approximately 808 U.S.­
based employees while remaining competitive with "manufacturers from China, Mexico and other 
low cost countries." 
The petitioner submits updated letters from some of the individuals who wrote previous reference 
letters on the beneficiary's behalf, offering additional expert opinions regarding the economic and 
environmental impact of the beneficiary's innovations. In addition, the petitioner submits a March 
18, 2011, letter from a registered patent attorney, states that, based on 
his research into the number of U.S. patents in the remanufactured toner cartridge industry, the 
number of patent applications from other inventors that cite the beneficiary's patents and 
applications, and uniqueness of the area in which the beneficiary has patented inventions, the 
beneficiary is "an especially prolific and accomplished inventor ... in relation to his peers in [the] 
remanufactured toner cartridge industry." 
The record includes evidence, including patent documentation, expert letters, and trade publications, 
which supports the petitioner's assertion that the beneficiary's innovations have had a degree of 
influence on the toner cartridge remanufacturing industry. Further, the letter from 
discussed above, indicates that the beneficiary has achieved of a high level of success as an inventor 
in relation to others in his field. We find that this record justifies projection that the beneficiary will 
serve the national interest to a significantly greater degree than would an available U.S. worker 
having the same minimum qualifications. 
III. Conclusion 
As discussed above, the evidence in the record establishes that the benefit of retaining this beneficiary's 
services outweighs the national interest that is inherent in the labor certification process. Therefore, on 
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the basis of the evidence submitted, the petitioner has established that a waiver of the requirement of an 
approved labor certification will be in the national interest of the United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the petitioner has met that burden. 
ORDER: The appeal is sustained.