sustained EB-2 NIW Case: Maritime Security Technology

FILE: office: NEBRASKA SERVICE CENTER Date: 
LIN 07 145 50957 
IN RE: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdrninistrative Appeals 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. 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. 
F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director treated the petitioner's untimely appeal as a motion, and affirmed the denial of the 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
sustain the appeal and approve the petition. 
The petitioner seeks 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 a member of the professions holding the defined 
equivalent of an advanced degree. The petitioner, a maritime security systems design, compliance and 
training company, seeks to employ the beneficiary as its chief technical officer and vice president. The 
petitioner asserts that an exemption fiom 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 a member of the professions with the equivalent of an advanced degree, but that the 
petitioner has not established that an exemption fiom the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a brief from counsel. 
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 did not dispute that the petitioner qualifies as a member of the professions with post- 
baccalaureate experience equivalent to an advanced degree as defined at 8 C.F.R. § 204.5(k)(2). 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. 
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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
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 U.S. Citizenship and Immigration Services] 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 (Cornrnr. 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. 
We also note that the regulation at 8 C.F.R. tj 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 offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on April 19,2007. The petitioner's president, 
 stated: 
[The petitioner] is offering [the beneficiary] employment as Vice PresidentIChief 
Technical Officer responsible for designing, managing and upgrading various[] 
proprietary security solutions for maritime operators to manage compliance 
requirements. . . . This position demands [the beneficiary's] specific experience and 
expertise. . . . [The beneficiary's] implementation, support and enhancement of [the 
petitioner's] proprietary security solutions . . . for training security personnel will greatly 
improve the overall United States national security by insuring continued compliance of 
maritime operators and government agencies with national and international security 
laws, regulations and codes. 
. . . [The petitioner] provides training and compliance management products and support 
to a broad array of private clients and government agencies within the maritime industry. 
. . . 
[The petitioner] offers [the beneficiary] continuing employment as VPIChief Technical 
Officer responsible for all aspects of design, implementation and management of our 
suite of proprietary, security compliance, training and information management software 
products in the area of maritime security. [The beneficiary] has played an essential role 
in the state-of-the-art computer and web-based technology widely used by governmental 
and private maritime operators in maintaining and upgrading their respective security 
postures. 
In March of 2007, [the petitioner] embarked on a partnership with ADTITyco and Ciber 
Systems to develop integrated access control and tracking solutions for intermodal 
security. Central to this relationship is [the petitioner's] SVAM [Secure Vendor Access 
Module] 2.0 project which improves the existing visitor and logistics management 
application and integrates with ADT and Ciber hardware components. . . . 
SVAM 2.0 is scheduled for release in the summer of 2007. . . . 
[The beneficiary] is critical to this process and will be responsible for amending existing 
software to support the rniddleware requirements of the integration effort. . . . 
Without [the beneficiary's] specific, security related technical knowledge and 
experience, rapid deployment of this upgrade would be impossible. 
[The petitioner] is a small business that provides software and consulting services 
essential to the security of the maritime transportation system. We work with most of 
the major passenger vessel facilities throughout the country, the ships that call at these 
facilities, and the vendors that service them. [The petitioner] also works with major 
container terminal operators in the nation's largest commercial seaports, including Los 
Angeleskong Beach, Oakland, and Seattle. . . . 
Page 5 
Four people make up [the petitioner]: three former U.S. Coast Guard officers (myself 
included), and [the beneficiary]. He provides all of the technical and software expertise 
that allows [the petitioner] to create tailor-made products to help our clients comply with 
the Maritime Transportation Security Act of 2002. These products include state-of-the- 
art access control software, a compliance management system that helps clients properly 
conduct risk and vulnerability assessments, and a series of computer-based training 
courses. In addition to having designed and produced all of these, [the beneficiary] also 
manages all technical support and maintenance, literally on a 24-hour basis. 
Over the years working with [the petitioner, the beneficiary] has developed a 
considerable amount of knowledge and expertise related to maritime security and the 
security regulations that govern the industry today. It is this knowledge, coupled with 
his considerable skill as an information technology (IT) professional, that make him 
even more unique and absolutely indispensable to the company. 
The petition included several witness letters, some of them dating back to 2003-04 (having been 
prepared for an earlier nonirnmigrant petition). One of these older letters was from - 
Director of Business Development for Homeland Security Corporation, who stated: 
[The beneficiary] and I first worked together on the TSA [Transportation Security 
Administration] Passenger Screener Training (PST) contract at the Federal Aviation 
Administration (FAA) Mike Monroney Aeronautical Center in Oklahoma City, OK. 
[The beneficiary] . . . helped configure thousands of computers used to train passenger 
screener students. The Smart Approach software was indispensable to our training 
mission. . . . 
Training continued after the initial one year period and [the beneficiary] continued to 
support the mission, configuring computers, setting up wide and local area networks, 
and trouble shooting when problems arose at training sites across the United States and 
Territories. 
In a 2003 letter, 
 Chief Executive Officer of International Logistics Solutions, LLC, 
stated: 
[The beneficiary] is a prominent figure in the information technology industry. His 
acumen as IT Director for Smart Approach Limited has permitted the company to reach 
new heights. . . . 
My association with Smart Approach Limited and [the beneficiary] was through the 
Passenger Screener Training Program as a result of the 911 1 terrorist attack at the World 
Trade Center Towers. I was a subcontractor with the Lockheed Martin team that was 
awarded the contract to accomplish the training requirements for the Passenger Screener 
Page 6 
Training Program. Smart Approach, and more specifically [the beneficiary, were] . . . 
instrumental in the on-time completion of that contract. 
In a more recent letter, 
 of Security Operations and Intelligence for Princess 
Cruises, stated: 
[The petitioner] has been indispensable to Princess Cruises' security operations. The 
one-of-a-kind internet-based SVAM system which [the beneficiary] developed and 
supports has not only been critical to modernizing and improving our business 
methodology, but also to providing a critical layer of security and compliance, by 
allowing us to more closely track deliveries and visitors to fleet vessels. 
[The petitioner] and [the beneficiary] have also provided invaluable service to our 
onboard security staff by providing essential, industry-focused onboard computer-based 
courses and x-ray simulation training. [The petitioner's] complementary web-based 
reporting system provides a simple method for tracking progress, certification and 
compliance for over 500 security personnel. 
In short, we at Princess Cruises consider [the beneficiary's] contribution to the safe and 
secure operation of our fleet to be invaluable. 
My company, CIBER, Inc., is an international systems integration consultancy that 
works with private and government sector clients. One of our areas of expertise is port 
security. . . . 
CIBER has teamed with [the petitioner] to integrate our current products and design 
cutting edge systems that will result in significant improvements to overall maritime 
security. [The beneficiary's] comprehensive knowledge and information technology 
skills are critical to developing these solutions, which provide secure, synchronized 
command and control, surveillance, and port security data. 
Transportation Manager for ADT Security Services Inc., stated: 
I am working with [the beneficiary and the petitioner] to integrate our respective 
products so that they can be used to improve security in the maritime port environment. 
We are working together to create a system that will use hardware and software to 
improve access control, physical security, surveillance and monitoring at port facilities 
and on board ships. . . . 
[The beneficiary] plays a critical role in developing these systems and products. It is my 
understanding that [the beneficiary] is solely responsible for designing and creating the 
software that allows the different products to communicate with each other and then 
produce the output for the people operating the equipment. 
On March 27, 2008, the director instructed the petitioner to "establish . . . the beneficiary's ability to 
serve the national interest to a substantially greater extent than the majority of his colleagues" and 
"demonstrate . . . the beneficiary's influence on his field of employment as a whole." 
In response, counsel stated: 
[The beneficiary] has been a driving force behind several information technology and 
security initiatives that are critical towards ensuring the safety of the maritime 
transportation sector. For example, [the beneficiary] is responsible for the fact that [the 
petitioner's] clients (vessels and facilities alike) are fully compliant with all aspects of 
the domestic and intemational security regulations pertaining to maritime security. [The 
petitioner's] Secure Vendor Access Module (SVAM), which [the beneficiary] 
conceived, developed and now maintains and supports, is used by thousands of people 
worldwide to fully meet many of the most challenging requirements under intemational 
security regulations. . . . Evidence of [the beneficiary's] unique talent in this highly 
specialized area is in the growing number of vessel and facility operators adopting and 
using the SVAM system he created. 
[The petitioner] decided to replace the existing Smart Approach Maritime Screener 
Course (MSC) with our own product that would incorporate many of [the beneficiary's] 
new ideas for delivering advanced x-ray simulation and training. . . . The resulting 
product - the Phoenix Training System - became the base operating platform for all [the 
petitioner's] training courses. 
. . . Cunently, our Maritime Screener Course is deployed on more than 50 percent of the 
world's major passenger vessels and serves as the primary training tool for their security 
personnel. With [the petitioner's] continued involvement, we expect this figure to 
approach 90 percent by the end of this year. 
The petitioner submitted documentation showing that major cruise lines and maritime security providers 
have licensed the petitioner's training materials. 
The director denied the petition on August 22, 2008, stating that the petitioner had established the 
intrinsic merit and national scope of the beneficiary's maritime security work, but had not sufficiently 
documented its claims regarding the beneficiary's standing in his occupation. The director 
acknowledged the petitioner's claims about the widespread use of materials developed by the 
beneficiary, but found that the petitioner had not produced evidence to support those claims. The 
director also noted that the petitioner's success as of mid-2008 cannot retroactively establish that the 
beneficiary was already eligible for the waiver as of the April 2007 filing date, because 8 C.F.R. 
3 103.2(b)(l) requires that the evidence must show the petition to be approvable as of the filing date. 
The director found that the letters from clients and colleagues failed to provide a meaningful 
comparison between the beneficiary and others in his field. 
The petitioner filed an untimely appeal, which the director treated as a motion pursuant to 8 C.F.R. 
6 103.3(a)(2)(v)(B)(2). Counsel argued: "the government fails to understand or recognize the unique 
nature and scope of the Beneficiary's particular, specialized occupational field," which makes "the 
'typical' forms of evidence . . . unavailable." 
The petitioner submitted further witness letters. - of the United States Coast 
Guard, who "served with all three of the [petitioner's] founding partners while on active duty with the 
U.S. Coast Guard," called the beneficiary "a pioneer in his field" but said little else about the beneficiary 
apart from a brief description of his duties. 
Senior Developer at the beneficiary's former employer Smart Approach Ltd., stated: 
[The beneficiary] invented the x-ray image capture process that transformed the quality 
of images from crude, at best, to nearly perfect. As a result, the entire x-ray simulation 
field has been dramatically improved and students are provided with the most realistic 
training possible in a non-threat environment. 
. . . Essentially, [the beneficiary] led the effort to provide x-ray simulation training for all 
airport screeners in the United States. 
. . . [The beneficiary] is clearly a leader who has influenced the field of x-ray simulation 
and training. 
former Assistant Secretary for Strategic Plans and former Acting Under Secretary 
for the Border and Transportation Security Directorate of the Department of Homeland Security, stated: 
[Tlhere are few companies in this field that have long term domain experience and even 
fewer key employees of these companies that have both expertise and domain 
experience using that expertise. [The beneficiary] is one of these people. . . . He is a rare 
asset and his continued work in this area is clearly in the national interest. 
Few, if any other companies have made such important contributions to the readiness of 
security personnel and to providing industry-specific solutions and systems that enhance 
the delivery of security on a daily basis. 
As the IT Director and the only information technology person on the Ipetitioner's] 
team, [the beneficiary] has designed and developed these integrated applications as 
ground-breaking technologies that will have wide reachmg impact for maritime and 
intermodal security. What makes [the beneficiary] unique, and his contributions so 
important, is that not only does he have exceptional skills, but more importantly he has 
the specific experience to understand the industry and the specific security problems the 
industry faces. It is fair to say that since no other company is engaged in providing these 
industry-specific training, access and compliance management products for the cruise 
market, that [the beneficiary] is a key if not the pre-eminent figure in the field. 
The director again denied the petition on January 23, 2009. The director discussed counsel's brief and 
the witness letters, but concluded that the letters were "from former and fellow colleagues and 
coworkers," and lack "corroboration from disinterested parties." The director further observed that 
"identifying the [beneficiary's] projects and accomplishments does not establish that those achievements 
are inherently superior to those of others in the same occupation." 
On appeal from the director's decision, counsel argues that the previously submitted letters and evidence 
show unique circumstances that the director failed to take into account. Counsel asserts that "the 
totality of the particular evidence" demonstrates the beneficiary's eligibility for the waiver. 
While many of the witnesses have worked directly with the beneficiary or with the petitioner's 
principals, we must consider the circumstances of these interactions. The beneficiary is not a scientific 
researcher who publishes his work in journals, where it influences the later work of independent 
researchers. Rather, the beneficiary works for a private enterprise, working for specific clients. The 
record shows widespread use of the petitioner's materials, and the petitioner has credibly attested that 
the beneficiary is the one who created and developed those materials. We give due weight to the 
uncontradicted assertions of a former top official of the Department of Homeland Security, who had 
jurisdiction over transportation security during his tenure there. 
It is true that a number of exhibits in the record date from after the filing date. Those exhibits, however, 
do not represent a significant change in the beneficiary's duties, nor do they concern the beneficiary's 
accomplishments after the filing date. Rather, the materials deal with the ongoing licensing of software 
and training materials that the beneficiary had already developed at the petitioning company. 
While some of the petitioner's arguments are more persuasive than others, and some of the 
petitioner's specific claims of fact remain unproven, on balance the petitioner has established that the 
beneficiary has been, and remains, an important innovator in his field. After careful review of the 
available evidence, we find that the petitioner has established that the beneficiary is eligible for the 
waiver. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 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. The petition is approved.