sustained EB-2 NIW Case: Software Engineering

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Office: NEBRASKA SERVICE CENTE~ Date:dyl 1 8 2005 
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PETITION: Immigrant Petition for Alien Worker as a Member of the Professio s 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 1153(b)(2) P 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documehts have been returned to - 
t originally decided your case. Any further inquiry must be made to t 
," Robert P. Wiemann, Director 
' Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by t 
Center, and is now before the Administrative Appeals Office on appeal. The apl 
petition will be approved. 
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of thc 
Act (the Act), 8 U.S.C. 9 1153(b)(2), as an alien of a member of the professions 
The petitioner seeks to employ the beneficiary as a programming engineer. ? 
exemption from the requirement of a job offer, and thus of a labor certification, i: 
United States. The director found that the beneficiary qualifies for classification a 
holding an advanced degree but that the petitioner had not established that an exc 
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 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified imrnigra 
of the professions holding advanced degrees or their equivalent or v 
exceptional ability in the sciences, arts, or business, will substantially ber 
national economy, cultural or educational interests, or welfare of the Uni 
services in the sciences, arts, professions, or business are sought by an er 
States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General dee 
the national interest, waive the requirement of subparagraph (A) t 
services in the sciences, arts, professions, or business be s 
employer in the United States. 
The regulation at 8 C.F.R. 9 204.5(k)(2) provides, in pertinent part: 
A United States baccalaureate degree or a foreign equivalent degree foll 
years of progressive experience in the specialty shall be considered the eq 
degree. 
The petitioner holds a baccalaureate degree in civil engineering from the Natic 
petitioner submitted an evaluation certifying the degree as equivalent to a b 
accredited U.S. educational institution. The petitioner documented at least five ye 
in the field. The petitioner's occupation falls within the pertinent regulatory de 
petitioner thus qualifies as a member of the professions holding an advanced de 
whether the petitioner has established that a waiver of the job offer requirement. a1 
in the national interest. 
Iirector, Nebraska Service 
will be sustained and the 
migration and Nationality 
ding an advanced degree. 
petitioner asserts that an 
the national interest of the 
nember of the professions 
tion from the requirement 
Aliens of Exceptional 
who are members 
because of their 
prospectively the 
States, and whose 
Iyer in the United 
it to be in 
an alien's 
ht by an 
:d by at least five 
dent of a master's 
University, Manila. The 
llaureate degree from an 
of progressive experience 
.ion of a profession. The 
:. The remaining issue is 
lus a labor certification, is 
Neither the statute nor pertinent regulations define the term "national interest." A Congress did not 
provide a specific definition of "in the national interest." The Committee on the noted in its 
report to the Senate that the committee had "focused on national interest by 
proportion of visas for immigrants who would benefit the United States 
Rep. No. 55, 101 st Cong., 1st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
t 
The Service believes it appropriate to leave the application of this test as exible as possible, 
although clearly an alien seeking to meet the [national interest] standard m st 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 ali 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. 
i 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 215 (Comm. 1998), set forth several factors 
which must be considered when evaluating a request for a national interest waiver. it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it that the proposed 
benefit will be national in scope. Finally, the petitioner seelung the waiver that the alien will 
serve the national interest to a substantially greater degree than would an having the same 
minimum qualific-dtions. 
It must be noted that, while the national interest waiver hinges onprospective benefit, it clearly must be 
established that the alien's past record justifies projections of future national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve cannot suffice to 
establish prospective national benefit. The inclusion of the term to require future 
contributions by the alien, rather than to facilitate the entry of an achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
We concur with the director that the beneficiary works in an area of intrinsic engineering, and 
that the proposed benefits of his work, increased dredging efficiency at the contractor in the 
United States with projects worldwide, would be national in scope. It whether 
the beneficiary will benefit the national interest to a greater extent 
same minimum qualifications. 
At the outset, we note that the beneficiary's experience in dredging and co ter programming is not 
dispositive. It is not sufficient for the petitioner to simply to enumerate the alien's ifications, since the labor 
certification process might reveal that an available U.S. worker has the qualifications 
Moreover, it cannot suffice to state that the alien possesses useful skills, or a "uniqu= 
of whether similarly-trained workers are available in the U.S. is an issue under 
Department of Labor. Id. at 221. Finally, training in advanced technology or 
perhaps attractive to the prospective U.S. employer, does not inherently meet the national 
a well. Id. at 218. 
background." The issue 
the jurisdiction of the 
 inu usual knowledge, while 
interest threshold. Id. 
Nor are we persuaded by assertions relating to the expiration of the petitioner's non status. Nothing in 
the legislative history suggests that the national interest waiver was intended for employers 
(or self-petitioning aliens) to avoid the inconvenience of the labor certification 
Eligibility for the waiver must rest with the alien's own qualifications rather ith the position sought. In 
other words, we generally do not accept the argument that a given important that any alien 
qualified to work on this project must also qualify for a national At issue is whether this 
beneficiary's contributions in the field are of such unusual merits the special 
benefit of a national interest waiver, over and above the seeking an extra 
benefit, the petitioner assumes an extra burden of proof. specific prior 
achievements that establish the alien's ability to benefit the 
the petitioner's Manager of Survey Engineering, explains that ate positioning and dredge 
monitoring are vital to the petitioner's operations, whose projects can require of $25,000 to 
$120,000. Thus, "exposure project efficiency is at a premium." In the 
System (GPS) and personal computers became important to hydrographics, surveying and dredge 
positioning. The petitioner's proprietary dredging software, which allowed to take advantage of 
GPS and personal computers, "was directly responsible for the ability of complete [projects in 
the Boston Harbor and San Juan Harbor] efficiently and with great and money to the 
government of the United States." Mr.concludes that the reason why [the 
petitioner] is the leading and largest dredging contractor in the United States." 
The beneficiary joined the petitioner are developed by Hewlett 
Packard. Beginning in Qatar and then Denmark, the beneficiary developed for specific projects. 
Based on his demonstrated success on these projects, the petitioner brought to its corporate 
headquarters during its transition from Hewlett Packard's basic language environment. 
The beneficiary rewrote the petitioner's "navigation and positioning 
dredge fleet and our clamshell dredge fleet." In addition, the 
[their] newly commissioned marine subaqueous drilling and 
beneficiary continues to maintain, improve and develop 
designed to operate in real-time based on 
has also developed a program that can 
As evidence of the significance of the above program, the petitioner submitted letter from senior level officials 
at three contractors addressed to the petitioner attesting to the superiority of the peti f 'oner's software with the 
industry. Two letters acknowledge the beneficiary's grams. We note that 
Senior Blasting Consultant with attests to becoming 
the beneficiary during the original Thus, oes 
not appear to be relying on the representations of 
In response to the director's request for additional evidence, the petitioner su mitted three letters from 
independent experts evaluating the beneficiary's software. The petitioner explained hat the software, designed 
for in-house use, had not been patented. 
I 
The first letter is from irector of the Center for Dredgi Studies at Texas A&M 
University and author of a textbook on ocean engineering. Dr. mates: 
Page 5 
I have reviewed and analyzed the [beneficiary's] contributions, seen a video presentation 
describing the proprietary software also provided by [the petitioner], nd been given an 
opportunity to interview representatives of [the petitioner] with respect to t at software and the 
role [the beneficiary] played in developing it. Based on the foregoing, s well as my own 
background in the field, in my opinion the processes developed by [the be eficiary] represent 
fundamental advances that establish [the beneficiary] as a leader in edging operations 
software development. 
i 
explains that he is a licensed professional engineer, a licensed land surveyor and an 
ACSM certified hydrographer who previously was responsible for the U.S. Engineers' surveying 
and mapping policies at the Corps' headquarters. Mr. was for those policies 
"associated with the Corps' nationwide dredging mission," including 
standards used by the Corps and its construction contractors." As a 
recently "rewrote the Corps' policy manual on hydrographic 
with the beneficiary's software and that his programs "represent a 
any other individual worldwide." He opines that he "cannot 
level it does without the services of [the beneficiary]." 
The final letter is from Chief Executive Officer o-an ho formerly 
designed and develo~ed software for automated survev svstems utilized 
'2 d, '2 '2 
contractors. ~rasserts that he observed the beneficiary's software ;luring oversight" and can 
"attest that t ese programs are perhaps the best suited for dredge operations and in the industry." 
Mr. honcludes that it is "doubtful that [the petitioner's] operations 
were it not for [the beneficiary's] software programs and his abilities to adapt t em to new needs and the 
constant changes in technology." 
i 
The director concluded that the petitioner's claims, supported only by references wh se knowledge is limited to 
the representations of the petitioner, are not persuasive evidence that the be eficiary is the individual 
responsible for the development of the petitioner's dredging software. 
i 
On appeal, counsel does not question the need for independent evidence the significance of the 
beneficiary's accomplishments and notes the submission of letters from Counsel asserts, 
however, that independent evidence is not required to support an an employee's 
"authorship" of an achievement. The petitioner submits 
petitioning company, including its president and chief 
developing and designing the company's dredging software. 
We concur with counsel only insofar as letters from employers are acceptable e of the employee's 
responsibilities for that employer. We note that had the beneficiary authored or patented an 
innovation, the most persuasive evidence of such accomplishments would 
article or the patent. 
The beneficiary is not performing the type of work where the results are published an if influential, cited. Nor 
is he an inventor of innovations likely to be patented and, if significant, widely The independent 
references in this case appear to be renowned experts, two of whom appear with the 
beneficiary's work during while performing oversight duties. While letters frc 
nevertheless are aware of the beneficiary are most persuasive, Dr anal: 
detailed review of the beneficiary's work than a cursory glance at the acc 
beneficiary's curriculum vitae. ~rlairns to have not only reviewe 
personally viewed a video presentation the petitioner created to showcase the be 
personally interviewed the petitioner's employees. Finally, the record includes lel 
have become acquainted with the beneficiary while installing his software and af 
level officials at the petitioning company. 
In light of the above, we find that the petitioner has adequately established the be 
the petitioner's software and that they continue to rely on him to improve existii 
programs. Given the unique circumstances of the beneficiary's occupation, WI 
sufficiently established that a waiver of the labor certification requirement for the 
interest. 
It does not appear to have been the intent of Congress to grant national intaes 
overall importance of a given field of research, rather than on the merits of the indi 
the above testimony, and further testimony in the record, establishes that the dredg 
significance of this petitioner's research rather than simply the general area 
retaining this alien's services outweighs the national interest that is inherent in t: 
Therefore, on the basis of the evidence submitted, the petitioner has established th 
of an approved labor certification will be in the national interest of the United Statc 
The burden of proof in these proceedings rests solely with the petitioner. Sect 
$ 1361. The petitioner has sustained that burden. Accordingly, the decision of thc 
will be withdrawn and the petition will be approved. 
ORDER: The appeal is sustained and the petition is approved. 
independent experts who 
is based on a much more 
lplishments listed on the 
he software, but to have 
iciary's work and to have 
j from subcontractors who 
vits from the most senior- 
iciary's role in developing 
software and develop new 
nd that the petitioner has 
neficiary is in the national 
aivers on the basis of the 
ual alien. That being said, 
community recognizes the 
research. The benefit of 
abor certification process. 
waiver of the requirement 
291 of the Act, 8 U.S.C. 
rector denying the petition