sustained EB-2 NIW Case: Logistics

id\:Hlilyingdata dclch::.
l
~\.'
provmtclearlyunw~ted
-jovllklaCJfpcrlGllllpn~acy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
PUBLICCOPy
FILE:
LIN 05 186 50948
Office: NEBRASKA SERVICE CENTER
~)
Date: JUN 18 Z007
INRE: Petitioner:
Beneficiary:
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:
SELF-REPRESENTED
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.
,,//tWft 1 OrtAt//7f-',k...
F Robert P. Wiemann, Chief
fL-c Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
sustained and the petition will be approved.
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 seeks employment as a logistic specialist. The petitioner
asserts that an exemption from the requirement of a job offer, and thus of an alien employment
certification, is in the national interest of the United States. The director found that the petitioner
qualifies for the classification sought 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 I submits a statement. For the reasons discussed below, we withdraw the
director's adverse findings.
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 requirement 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 petitioner holds a Master's in Business Administration (MBA) from Thunderbird, the American
Graduate School of International Management in Arizona. The petitioner's occupation falls within the
1 Although the record contains a Form G-28 from the form indicates that _
represents the petitioner in connection with the petitioner 's Form 1-485 only. as not submitted a
Form G-28 indicating that he represents the petitioner for purposes of his Form 1-140 or on appeal. The
petitioner filed the Form 1-140 and the instant appeal on his own behalf with no representation . Accordingly,
we consider the petitioner to be self-represented in this matter.
Page 3
pertinent regulatory definition of a profession? The petitioner thus qualifies as a member of the
professions holding an advanced degree. The remaining issue is whether the petitioner has established
that a waiver of the job offer requirement, and thus an alien employment certification , is in the national
interest.
Neither the statute nor 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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states:
The Service 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 Dep't. of Transp., 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.
2 The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as follows:
[O]ne of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for
which a United States baccalaureate degree or its foreign equivalent is the minimum
requirement for entry into the occupation.
The Department of Labor 's Occupational Outlook Handbook 662 (2006) suggests that "logisticians" should
have at least a baccalaureate degree .
We concur with the director that the petitioner works in an area of intrinsic merit, logistics. The
director then concluded that the proposed benefits of the petitioner's work, increased efficiency in
exporting goods, especially cars and automotive parts, would benefit only the petitioner's employer,
_ and its client, General Motors. The director noted statements by the Vice President of
.111••• asserting that the petitioner's system was a company trade secret. Thus,
the director concluded that the proposed benefits would not be national in scope.
On appeal, the petitioner asserts that protecting the system as a trade secret does not prevent other
companies from utilizing the system, noting that Microsoft protects its operating systems while
allowing their use. The petitioner further asserts that it is only relevant whether the petitioner
developed the system and whether it has been adopted , not who controls the intellectual property
aspects of it.
As acknowledged by the director, - asserts that _ "will negotiate with Chrysler
and For..e similar cost s~ increases in efficiency when [sic] we have done for
GM." does not indicate that Chrysler or Ford has expressed any interest in such
negotiatlo s an e record contains no letters fr~ at these companies. _
petitioner's systems would appear to reach beyon~ and General Motors. _
Senior Commercial Manager and General Manager of Mitsui O.S.K. Bulk Shipping (U .S.A.), Inc.,
attests to GM's improved use of cargo space since the implementation of the p~ogram
and expresses the hope that Chrysler and Ford will adopt a similar system . _Chief
Executive Officer of NFM Import & Export Company asserts that he invited the petitioner to visit
NFM after listening to the petitioner speak at a conference. _asserts that the petitioner's
investigation and subsequent logistics advice has the potentia~FM significant amounts of
money. head of logistics projects for GM International Logistics at Pasha Group,
implies that Pasha Group's customers include Bentley, Lotus and Honda and asserts that the
petitioner's system increases work efficiency by 60 percent and reduces costs by 30 percent. Finally,
based on his work with the automotive industry , the petitioner was invited to speak at the 9 th Annual
International Lumber Conference held in Beijing, China.
In light of the above, the proposed benefits of the petitioner's work are not limited to ~d
General Motors, but can be considered national in scope.
We must now consider whether the petitioner will benefit the national interest to a greater extent
than an available u.S. worker with the same minimum qualifications. Eligibility for the waiver must
rest with the alien's own qualifications rather than with the position sought. In other words, we
generally do not accept the argument that a given project is so important that any alien qualified to
work on this project must also qualify for a national interest waiver. Matter ofNew York State Dep 't
of Transp. , 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful
skills, or a ''unique background." Special or unusual knowledge or training does not inherently meet
the national interest threshold. The issue of whether similarly-trained workers are available in the
United States is an issue under the jurisdiction of the Department of Labor. Id. at 221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent or a trade secret, is insufficient by itself. Whether the
specific innovation serves the national interest must be decided on a case-by-case basis. Id. at 221,
n.7.
explains that automotive shipping companies charge by reservation rather than actual
space used. Thus, accurate forecasts and reservations are vital for the exporter. In an interview
available at www.universallogistics.net, a copy of which the petitioner submitted, JSenior
Director of International Logistics at General Motors, explains that every vehicle shipped requires
five documents, too many to handle manually as export volume increases. _ also notes the
high storage costs and overseas interest charges incurred if a car arrives at the wrong time and is not
timely shipped.
_ explains that the petitioner developed the AS400 Vehicle System, which integrates the
communication between the different parties involved in the logistics chain, including overseas car
dealers, port processors, ocean carriers, airlines, government agencies, customs agencies and the
Chamber of Commerce. The system handles processes that were previously handled by facsimile
and telephone.
-Regional Manager at General Motors, asserts that the AS400~tem is the
~etitioner's logistics expertise and IBM's iSeries technology. _concludes
that as a result of this system, the more General Motors exports, the more money it saves. _
~ and several other references at General Motors all affirm that the petitioner's system saves
General Motors 50 percent in logistics costs per vehicle. confirms that due to the
AS400 Vehicle System, General Motors has increased its mar e s are In urope by 2.3 percent.
In addition,~ explains in his letter:
Due to the high tariffs in China, local assembly is much cheaper for us, but it creates
great burdens on the logistics chain, because all parts must arrive, and must arrive at
the right time; the work of one single vehicle export is now equivalent to that of
thousands of vehicles exported in the other projects as each part involves at least four
individual transactions among all the parties. Without the automated support of the
AS400 Vehicle System, we would not have been able to handle these requirements.
confirms that the petitioner's system has resulted in General Motors increasing its
market share in China by 18.9 percent. , General Manager of the International
Production Center of General Motors, China, asserts that they are "currently extending the
Page 6
• application of [the petitioner's] system to all our domestic transportations." Finally, on April 14,
2005, The Chartered Institute of Logistics and Transport in China issued the Award for
Manufacturing Logistics to the petitioner in recognition of the AS400 Vehicle System.
In light of the above, the petitioner has not only demonstrated that he is the developer of an
innovation, but that the innovation is widely adopted by a major automotive company, which
confirms a 50 percent savings per vehicle exported. Moreover, the system has attracted some
attention beyond the automotive industry, as is evidenced by the petitioner's invitation to present his
system to a lumber industry conference and the interview posted at www.universallogistics.net,
Moreover, it is clear from the record that the petitioner did not simply improve an existing system,
but developed an entirely newall-encompassing system to handle automotive export logistics.
While many reference letters derive from employers, clients and those in the chain of export who
have benefited from the petitioner's system, these letters attest to the broad reach of the petitioner's
widely adopted and implemented innovation.
It does not appear to have been the intent of Congress to grant national interest waivers on the basis of
the overall importance of a given field of research, rather than on the merits of the individual alien.
That being said, the above testimony, and further testimony in the record, establishes that the logistics
community recognizes the significance of this petitioner's research rather than simply the general area
of research. The benefit of retaining this alien's services outweighs the national interest that is inherent
in the alien employment certification process. Therefore, on the basis of the evidence submitted, the
petitioner has established that a waiver of the requirement of an approved alien employment
certification will be in the national interest of the United States.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has sustained that burden. Accordingly, the decision of the director
denying the petition will be withdrawn and the petition will be approved.
ORDER: The appeal is sustained and the petition is approved.