PUBLIC COpy

DATE: APR 0 3 2012

INRE: Petitioner: Beneficiary:

OFFICE: NEBRASKA SERVICE CENTER

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:

SELF -REPRESENTED

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

~~~ ~erry Rhew -..-/

Chief, Administrative Appeals Office

www.uscis.gov

Page 2

DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.

The petitioner seeks classification under 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 an advanced degree. The petitioner seeks employment as the president of a new "company specializing in sales, servicing and export of consumer electronics." At the time he filed the petition, the petitioner was a business development specialist at Equus Computer Systems, City of Industry, California. 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 qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has not established that an exemption from the requirement of a job offer would be in the national interest ofthe United States.

On appeal, the petitioner submits a brief and copies of materials already in the record.

In this decision, the term "prior counsel" shall refer to ~ho represented the petitioner at the time the petitioner filed the petition. On appeal, the petitioner refers to his "previous counsel, attorney _and there is no indication that any other attorney participated in the filing of the appeal.

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 ofJob 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.

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The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. 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, 101st Cong., 1st Sess., 11 (1989).

Supplementary information to regulations implementing the Immigration Act of 1990, published at 56 Fed. Reg. 60897, 60900 (November 29,1991), states:

The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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 (NYSDOT) , 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set forth several factors which must be considered when evaluating a request for a national interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. Next, the petitioner must show 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 United States worker having the same minimum qualifications.

While the national interest waiver hinges on prospective national benefit, the petItIOner must establish 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 intention behind the term "prospective" is 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 AAO also notes that the regulation at 8 C.F.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 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.

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The petitioner filed the Form 1-140 petition on November 2, 2009. On that form, the petitioner stated his intention to serve as "President" of a The record does not indicate that this firm existed at the time of filing. Rather, the record reflects the petitioner's intention to create a new, as yet unnamed company.

In an accompanying statement, prior counsel stated that the petitioner "is regarded as a seminal figure in the economic development of [the] electronics industry in the United States during the last six years." Detailing the petitioner's employment history since 2003, prior counsel stated that the petitioner "was responsible for generating $16 million [in] revenue to three different companies, which was directly or indirectly connected to the generation of hundreds of employment opportunities in the U.S. economy." Prior counsel stated that, given "the current lengthy process of obtaining a labor certification," an exemption from that process would be in the national interest. Nothing in the legislative history suggests that the national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. NYSDOT, 22 I&N Dec. 223.

The AAO notes that, as prior counsel wrote the above words in October 2009, an application for labor certification was already pending on the petitioner's behalf. New Quality Auto Radiator Corporation, City of Industry, California, applied for a labor certification on the petitioner's behalf on June 22, 2009. The company intended to employ the petitioner as an accounting manager.

Apart from documentation of the petitioner's academic degrees, the bulk of the initial submission consisted of witness letters. Two of the five letters are one-page employer recommendation letters, written shortly after the petitioner left the respective employers. In a letter dated March 18, 2005,

stated:

[The petitioner] served as our Business Analyst during the period from February 03, 2003 through February 28, 2005. [The petitioner] was an outstanding professional with extraordinary expertise [in] business analysis and development of various computer systems and electronics products in the u.s. and around the world. During his tenure with us, [the petitioner] was able to assist our company to triple our sales volume and establish an excellent working relationship with our main vendor.

In a March 4, 2008 letter, stateq:

City of Industry,

[The petitioner] worked for our company as Business and Budget Analyst from 03/01105 to 02129/08 . ...

[The petitioner] has been able to analyze business trends and negotiate contracts with various manufacturers. He has been the key personnel in our company responsible for doubling our sales revenue within the last three years.

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The remaining three letters were newly written to support the petition. manager of Equus Computer Systems, stated:

[The petitioner] has been serving as our Business Development Specialist since March of 2008 and has been responsible for conducting market feasibility studies on target markets, including overseas markets. [The petitioner] works with cross­functional teams, including Product Design, Manufacturing, and our Marketing and Finance departments to review marketing strategies, to conduct cost-benefit analysis and product mix evaluations for target markets. Since joining our company, [the petitioner] has been able to guide our management and design teams to redesign some of our built-to-order desktops, notebooks and servers in order to fend off foreign competitions [sic]. As a result, our sales for 2008 increased by over 10 percent and [the petitioner] has been instrumental in bringing about the increase in our revenue.

general

The two remaining witnesses are the petitioner's acquaintances rather than employers. _ _ assistant professor of management information science at the University of Wisconsin at Parkside, stated:

[The petitioner] has proven to be a veteran in playing various leadership roles in different U.S. companies in promoting U.S. electronics products to the overseas market. ...

Of particular interest to me ... is [the petitioner's] ability to apply his academic training in Business Modeling and Global Communication and Management . .. and apply them to the global business development in the electronics industry ....

Granting [the petitioner] a U.S. permanent resident status is likely to generate hundreds of employment opportunities here in the U.S. in the near future due to his ability to increase our export and to reduce our nation's current account deficit.

an optics engineer based in Palmdale, California, stated:

I learned that [the petitioner] is an accomplished professional who has been assisting various companies in promoting their businesses overseas, and even to redesign their electronics and computer systems based on changes in customers' preferences.

[The petitioner's] extraordinary career background in the electronics industry, coupled with his strong academic training in business management, prompted me to consider having a joint venture business with him in the near future, focusing on exporting our U.S.-made, cutting-edge, electronics products to Asia, reversing the current trend of dominance in the global electronics market.

Page 6

The petitioner submitted no documentary evidence to show the extent of his impact and influence on the electronics industry, or to allow a meaningful comparison between the petitioner's work and that of other qualified professionals in the same field.

On November 25, 2009, the director issued a request for evidence. The director acknowledged the intrinsic merit of the petitioner's occupation, and instructed the petitioner to establish its national scope and the petitioner's "past record of specific prior achievement, which justifies projections of future benefit to the national interest." In response, prior counsel cited various statistics regarding the national reach of the consumer electronics industry. With respect to the petitioner's own record of accomplishment, prior counsel repeated sections of the earlier introductory statement but provided no new information. The petitioner also submitted copies of previously submitted letters.

The director denied the petition, stating: "It appears the petitioner was recruited to expand the company's market share among other duties, but time will tell if the petitioner's services are truly national in scope. At this time, there is no verifiable evidence that this is the case."

The director acknowledged the petitioner's academic and professional background, and quoted from witness letters in the record, but found that the petitioner did not submit "enough evidence ... to distinguish the alien from an average U.S. worker who contributes to the company by performing hislher functions."

On appeal, the petitioner observes that the "national scope" prong of the national interest test from NYSDOT applies to the occupation, rather than to the individual alien. The AAO agrees with the petitioner that a leadership position in a consumer electronics company can have national scope. The AAO will therefore withdraw the director's finding in this regard.

There remains the issue of the petitioner's impact on his field. The petitioner notes: "As of 2008, California's gross state product (GSP) is about $1.85 trillion, which is 13% of the United States gross domestic product (GDP)." Prior counsel had previously indicated that the petitioner "was responsible for generating $16 million [in] revenue to three different companies" in California. According to the petitioner's figures, $16 million is less than one 100,000th of California's GSP. In this context, it is clear that simply quoting figures cannot suffice to show that the petitioner has had a particularly significant impact in his field.

The petitioner correctly asserts that one might qualify for the waiver through positive economic impact, but it does not follow that every contribution, regardless of size, warrants the waiver. The plain wording of section 203(b )(2) of the Act indicates that aliens who "will substantially benefit prospectively the national economy" are, generally, subject to the job offer requirement. This, on its face, is enough to rebut the claim that economic benefit automatically qualifies the petitioner for the national interest waiver.

The petitioner states: "I do not believe that ordinary business development specialists, with similar academic background[s], could double or triple a company's sales within a couple of years." Going

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on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The petitioner offers no evidence on appeal to show that the results he has achieved are out of the ordinary in his field. He simply offers his own opinion about whether others could accomplish what he has done.

Furthermore, even accepting the claim that the petitioner has doubled or tripled the sales for his past employers, the record fails to establish the standing of those companies before and after the petitioner's involvement. A small company having a negligible impact in its field may remain insignificant even after sales have tripled. Prior counsel had previously made general claims about employment creation, but the record contains no evidence or even precise figures to show the extent to which the petitioner's work has resulted in jobs that otherwise would not exist. The petitioner's submissions have been so vague and lacking in detail that the AAO cannot determine the extent, if any, to which the petitioner has benefited the United States economy.

When considering the prospective (as opposed to past) benefit arising from the petitioner's work, another significant factor arises. Nothing in the record indicates that the petitioner has any prior experience as a top business executive. His prior job titles have included "business development specialist" and "business analyst." Thus, the petitioner has not established any track record as the president of a consumer electronics company, let alone a record that sets him apart from others who are already working in that capacity. The assertion that his success as a development specialist portends future success as a company president amounts to little more than speculation.

The petitioner repeats the assertion that to hold him to the job offer requirement would be detrimental to the economy, particularly given "the current lengthy process of obtaining a labor certification." By the time the petitioner made this claim on appeal, on May 29, 2010, the Department of Labor had already approved the labor certification filed by New Quality Auto Radiator Corporation. On May 14, 2010, again before the date on the brief, that employer filed a Form 1-140 petition seeking the same classification that the petitioner seeks for himself in the present proceeding.

The director approved the employer's petition on October 14,2010. Thus, the petitioner is now the beneficiary of an approved petition in the same classification he sought for himself. In effect, the petitioner seeks an exemption from a requirement he has already met. The AAO also notes that the national interest waiver applies only at the petition stage; it cannot expedite the processing, or affect the outcome, of a Form 1-485 adjustment application. The approved petition has a priority date more than four months earlier than the filing date of the present petition, which means that, even if the AAO had approved the petition on appeal, it would have had no effect on the priority date available to the petitioner.

As is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified to engage in a profession in the United States should be exempt from the requirement of a

, .

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job offer based on national interest. Likewise, 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 profession, rather than on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement of an approved labor 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 not sustained that burden.

ORDER: The appeal is dismissed.

Standard National Interest Waiver (NIW) Supplemental Worksheet

Filing Date: ______________________________________ [Receipt Number Barcode Label Here]

Name: __________________________________________ A-______________________________

I. An alien may file an I-140 Pro Se or through someone qualified to file USCIS Form G-28, or any

person on behalf of the alien, such as an agent or an employer, may file an I–140 visa petition for

classification under section 203(b)(2)(B)(i) of the Immigration and Nationality Act, but without a

permanent labor certification application having been filed with the Department of Labor first.

II. The alien seeks to qualify for classification as a member of the professions with an advanced degree

and/or is of exceptional ability in the sciences, arts, or business with a degree of expertise significantly

above that ordinarily encountered. (select only one):

The alien holds an advanced degree, 8 CFR 204.5(k)(3)(i)(A) [MBA will qualify!]

The alien holds a Bachelor's degree in addition to five years of progressive experience, 8 CFR 204.5(k)(3)(i)(B), or

The alien qualifies as an alien of exceptional ability in the sciences, arts, or business. 8 CFR 204.5(k)(2)

III. The exceptional ability petition must be accompanied by at least three1 of the following:

An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a

college, university, school, or other institution of learning relating to the area of exceptional ability;

? Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of

full-time experience in the occupation for which he or she is being sought;

? A license to practice the profession or certification for a particular profession or occupation;

Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional

ability; [High pay within the context of the home/foreign county’s economy, if experience was outside the U.S.]

? Evidence of membership in professional associations; or

? Evidence of recognition for achievements and significant contributions to the industry or field by peers,

governmental entities, or professional or business organizations.

? Other: As per 8 CFR 204.5(k)(3)(iii). If the above do not readily apply to the beneficiary's occupation, the petitioner

may submit alternate comparable evidence* to establish the beneficiary's eligibility.

* When comparable evidence is presented, the alien or petitioner must explain how and why the regulatory criterion

for which comparable evidence is being submitted does not readily apply to his or her occupation.

* There is no limitation on the type of comparable evidence the alien or petitioner may present; instead, the focus is

on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being

substituted.

* Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed

above. Irrespective of the type of evidence presented, the alien or petitioner has the burden of proving, by a

preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification.

* USCIS will take into account the totality of the circumstances when reviewing ALL evidence provided.

1 Most EB-2 ―Entrepreneurs‖ that the U.S. would welcome will likely have a college degree [Master’s of Business Administration—

MBA will be a dime-a-dozen in this crowd with perhaps some CPAs (this would be a different and/or separate criterion as a

certified/licensed profession)]. These NIW candidates also need money to start a business and to support themselves and any

dependents while getting established. However, without the EB-5 approach, these folks and family can work in the business, too. The

last criterion to be met will be the big variable. They will need either 10 or more years of experience in business or a MAJOR

accomplishment of some sort. “Other” comparable evidence under 8 CFR 204.5(k)(3)(iii) may be substituted when (i) and/or (ii) do

not readily apply. Example: some craftsmen, artisans, and professions serve as apprentices or novices before be deemed a master.

Standard National Interest Waiver (NIW) Supplemental Worksheet

IV. Identify specific evidence for each of the following three criteria2 required in order to be granted a

waiver of an actual job offer and the normal labor certification process of the Department of Labor:

A. Intrinsic Merit. Eligibility is not established solely by a showing that the beneficiary’s field of

endeavor has intrinsic merit. A petitioner cannot establish qualification for a national interest waiver

based solely on the importance of the alien’s occupation. It is the position of USCIS to grant national

interest waivers on a case by case basis as demonstrated by the evidence in the individual record,

rather than to establish blanket waivers for entire fields of specialization. The intrinsic merit of the

occupation or field of endeavor must stand on its own inherent worth specific to this person in that job.

It is not just any old business or occupation that will be seen as having ―intrinsic merit‖. How many dry-

cleaners, corner grocers, gas stations, or fast-food franchises does a country need? The business could be in

any of a great many sectors but cannot be run-of-the-mill or a cookie-cutter set-up. Any proper and

worthwhile business will start with a business plan. Such plan can be developed with not only the normal and

necessary aspects in mind but also with thought as to supporting the next two criteria to prove eligibility for

the National Interest Waiver.

For example, a ―retailer‖ might attempt to have a specific ethnic or cultural flare or emphasis. Ethnic

handicrafts is a possibility BUT the merchandise cannot be cut-rate crap from a sweatshop. Handmade crafts

and works of folk-art of high quality sold for a modest to high profit, but where the supplier is NOT taken

advantage of and is paid well enough to raise the artisans’ standards of living and increase educational

possibilities for their families (domestically and abroad). This would not have to be philanthropic but rather it

would need to be of a high ethical value. [These qualities while built into the plan for this purpose, will be

expanded upon at a later stage under the final criterion.]

Another possibility might be an inventor holding a patent on an item to be manufactured in the U.S. Perhaps

someone has written a new software application which they have copyrighted which will significantly change

the lives of many Americans and others around the world? Folks will need to sell it, install it, continue to

upgrade it...IF it is in the plan to do these things and other associated activities in the U.S., this would be a

welcome EB-2 entrepreneur or associate joining an established or recent existing organization or a new start-

up company, with or w/o partners.

B. National in Scope. Although the actual job may be in one location or within a particular region, its

overall effects must be shown to be more far-reaching or interconnected more broadly in the overall

analysis. Once again, this determination is made on a case by case basis as demonstrated by the

evidence in the individual record. The actual and/or prospective, cumulative and/or positive, benefits,

effects, consequences, ramifications, and/or results of the alien’s contributions through the proposed

work must go beyond minimal, confined, limited and local in scope. The reach of the alien’s work must

be substantial.

The retailer from above would likely have an internet presence and perhaps produce an infomercial or two. In

addition, their products could pop-up in other retail establishments if not in his or her own chain.

2 The NIW criteria from Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) or (NYSDOT) are

DIFFERENT criteria from those required for the EXCEPTIONAL ABILTY classification and are fluid and broad in concept. The

evidence will be variable and MUST be overall convincing. The prospective nature is similar to but must exceed that required for the

EXCEPTIONAL ABILITY (EA) classification itself. EA is itself merely one of the two possible threshold classifications which

would normally require a labor certification application through the Department of Labor. NIW eligibility comes after that stage.

Standard National Interest Waiver (NIW) Supplemental Worksheet

As for the computer geek from above...well, IF it’s a really good program, people will eat it up. As part of

the evidence underlying an application by an EB-2 entrepreneur, they would need something to back up the

claim. They might have a patent, a copyright, contracts, perhaps overseas offices, a factory, a dedicated

supply of high-quality unique goods?

A professional would need a license or certification for their private practice, but how will they show a

national scope? Perhaps one can demonstrate that they will have an association with a national entity in a

unique or very high position of great responsibility or influence regarding strategic and/or policy decisions on

a national scope or even global marketplace.

C. In the National Interest. A and B focus on the occupation and the alien’s work product, respectively.

This final threshold is therefore specific to the alien. The evidence submitted must persuasively

demonstrate that the national interest would be adversely affected if a labor certification were required

for the alien. It must be established on a case by case basis as demonstrated by the evidence in the

individual record 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.

This last criterion is the most difficult to prove. Many have tried and failed.

This is where one might borrow from the EB-5 approach by using econometric models to produce economic

analyses (EA’s) based on comprehensive, detailed and credible business plans. The major difference is that

there is no minimum required number of jobs that must be created and no minimum amount of investment.

Many EB-5 EA’s blather on about poverty levels and non-qualifying unemployment rates (not 150% of

national average), State or Federally designated enterprise or redevelopment zones, and socio-economic and

demographic elements within a community. All that may be irrelevant to EB-5 but would be useful to the EB-

2 NIW Entrepreneur I-140.

Some of this NIW supporting documentation could be crafted in the same manner as opinions of recognized

authorities as one might submit in support of an I-129 for an H1-B entrepreneur. See 8 CFR § 214.1

(h)(4)(ii). If one must borrow concepts, borrow good ones and those which USCIS has more experience with

and faith in.

Use that which USCIS has the ability to properly evaluate and weigh as evidence under the right standards.

Some food for thought:

“FAILING TO PLAN = PLANNING TO FAIL”

e-mail: joseph.whalen774@gmail.com (Revised & posted on August 6, 2011.) Page 1

Compare & Contrast EB-5 and EB-2 “Entrepreneurs” A Brief Overview or “Entrepreneur Cheat-Sheet”

EB-5 Entrepreneurs EB-2 Entrepreneurs

Stand Alone Investor

or Group of

non-Regional Center

Investors

Regional Center

Affiliated Investor

With Permanent

Labor Certification and

Job Offer (can also self-

petition through own

qualifying business)

Through National Interest

Waiver (can also self-

petition alone or through

own qualifying business or

by agent or U.S. employer)

INA § 203(b)(5)

[8 USC § 1153(b)(5)]

Pub. L. 102-395 §610

[8 USC § 1153 Note]

as amended

INA § 203(b)(2)

[8 USC § 1153 (b)(2)(A)]

INA § 203(b)(2)

[8 USC § 1153 (b)(2)(B)(i)]

File I-526 Petition File I-526 Petition File I-140 Petition File I-140 Petition

Proof of having already

created 10 direct full-time

permanent jobs for qualified

employees or submit a

Matter of Ho compliant

Business Plan

Regional Center supplied

EB-5 compliant plans and

projections that call for 10

direct or indirect full-time

jobs and previously vetted

transaction documents

Evidence of eligibility as a

Professional with an

Advanced Degree or

equivalent or of Exceptional

Ability(such as in Business)

Evidence of eligibility as a

Professional with an

Advanced Degree or

equivalent or of Exceptional

Ability

Plan to invest minimum

required amount of capital

and lawful path and source

of funds documentary

evidence

Plan to invest minimum

required amount of capital

and lawful path and source

of funds documentary

evidence

Description of business

venture (can be same as for

EB-5 or comparable

evidence)

Description of business

venture (can be same as for

EB-5 or comparable evidence)

Here the Paths Diverge Greatly Between EB-5 and EB-2 Entrepreneurs

Evidence of basic expected

substantial prospective

benefit to the National

Interest

Evidence of basic expected

substantial prospective benefit

to the National Interest**

Approved Permanent Labor

Certification

Evidence* in support of the

National Interest Waiver w/

Form ETA 750B, Statement

of Qualifications of Alien (in

duplicate)

Potentially Receive an RFE or NOID and Respond to it

Obtain Visa Classification Petition Approval

Apply for and Obtain an Immigrant Visa or Adjustment of Status

Here the Paths Diverge Greatly Between EB-5 and EB-2 Entrepreneurs

Enter on EB-5 Immigrant Visa or Obtain Adjustment and

Conditional 2 Year “Green Card” [Conditional Lawful

Permanent Resident (CPR) status]

Enter on EB-2 Immigrant Visa or Obtain Adjustment and

Regular 10 Year “Green Card” [Lawful Permanent Resident

(LPR) status]

Continue with or implement investment plans. End of Story—Best of Luck

File I-829 Petition to Lift Conditions By Entrepreneur * Specific criteria found in: Matter of New York State Dept.

of Transportation, 22 I&N Dec. 215 (Comm. 1998)

(NYSDOT) [Adds: Intrinsic Merit & National in Scope to in

the National Interest].

Submit Proof of Full Investment and 10 Qualifying Jobs

Upon approval get new 10 Year “Green Card” or get

TERMINATED, issued an NTA and see an IJ and plead

your case, lose, and sue in Circuit Court.

** One of these areas must benefit the National Interest: Economy, Education, Culture, or Welfare of the United States.

1

EB-2 Entrepreneur’s FINAL Hurdle for a National Interest Waiver

The following is a paraphrase of a sentence that appears in the vast majority of

AAO National Interest Waiver (NIW) case decisions. What does it really mean in

practical application?

It remains, then, to determine whether the alien beneficiary [or the alien as a

self-petitioner] will benefit the national interest to a greater extent than an

available U.S. worker with the same minimum qualifications.

In order to properly address this last criterion, you first have to understand how to

get there. In order to qualify for an EB-2 visa classification in the first place, you

can be either:

1.) a professional with an advanced degree (or equivalent), or

2.) an alien of exceptional ability in the sciences, arts, or business;

3.) and you 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. [Collectively: the National Interest.]

The first hurdle is to qualify for the underlying visa classification. Only a qualified

EB-2 can seek the further additional benefit of a NIW. In that the basic

classification already requires a high showing of evidence and worth, the NIW

requires one to leap an even higher hurdle. Determining exactly how much more is

required is a highly subjective endeavor. This reality makes NIW eligibility a

genuine issue of facts and the interpretation of them. This subjective determination

is a point of contention in most, if not all, such petitions.

However, this subjectivity is not without some guidance. EB-2 exceptional ability

has regulatory criteria as a guide. See 8 CFR § 204.5(k)(3)(ii). A similar visa

classification is also useful in serving as a guide. Compare the EB-2 alien of

exceptional ability minimum qualifications to those of the EB-1 alien of

extraordinary ability in the sciences, arts, education, business, or athletics. See 8

CFR § 204.5(h). If you can qualify for the EB-1 (EA) the job offer and

2

concomitant labor certification process is automatically waived by statute. If you

can qualify for EB-1 EA then seeking an EB-2 NIW is moot. Make sure you apply

for the correct classification in the first place. Striving towards the EB-1 EA

standard would seem like a safe bet, at first blush. However, the evidentiary

showing for the EB-1 EA is qualitatively different from the NIW criteria.

These two very similar underlying visa classifications are distinct from each other

but it is difficult to judge that difference. Then there is also the NIW criteria to

consider. This rather complicated reality makes it a difficult task for applicants

(alien self-petitioners) or U.S. employer petitioners and USCIS adjudicators. The

NIW requires a showing somewhere in between the EB-2 and EB-1 standards.

NIW eligibility requires an evidentiary showing that will be above EB-2 standards

yet may (and likely will) be below EB-1 standards yet will still have to cover at

least one of the four listed National Interest bases: economy, cultural interests,

educational interests, or welfare. While these same exact four bases are the things

that the EB-2 EA alien must “benefit prospectively” just to qualify for the basic

classification if supported by an approved labor certification, the NIW must have

intrinsic merit and be national in scope, as well as be in the national interest.

Let’s start by comparing the legal definitions and criteria, side-by-side.

EB-1

Extraordinary Ability

EB-2

Exceptional Ability

Non-Physician NIW

National Interest Waiver INA § 203 (b)(1)(A) and

8 CFR § 204.5(h)(2)

INA § 203 (b)(2)(A) and

8 CFR § 204.5(k)(3)(ii)

INA § 203 (b)(2)(B)(i) and

8 CFR § 204.5(k)(4)(ii)

Extraordinary ability means a

level of expertise indicating

that the individual is one of

that small percentage who

have risen to the very top of

the field of endeavor.

Exceptional ability in the

sciences, arts, or business

means a degree of expertise

significantly above that

ordinarily encountered in the

sciences, arts, or business.

Eligible aliens are either:

Members of the professions

holding advanced degrees or

their equivalent,

OR

Individuals who because of

their exceptional ability in the

(i) NATIONAL INTEREST

WAIVER- Subject to clause

(ii), the Secretary of

Homeland Security may,

when the Secretary of

Homeland Security 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.

3

sciences, arts, or business;

AND

They 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,

but

The job offer by a petitioning

U.S. employer and/or the

usual permanent labor

certification process may be

waived in the national

interest.

Exemption from job offer. The

director may exempt the

requirement of a job offer, and

thus of a labor certification,

for aliens of exceptional

ability in the sciences, arts, or

business if exemption would

be in the national interest.

To apply for the exemption,

the petitioner must submit

Form ETA–750B, Statement

of Qualifications of Alien, in

duplicate, as well as evidence

to support the claim that such

exemption would be in the

national interest.

Specific criteria found at:

8 CFR § 204.5(h)(3) Specific criteria found at:

8 CFR § 204.5(k)(3)(ii)(A-F)

or (4)

Specific criteria found in: Matter of New York State

Dept. of Transportation, 22

I&N Dec. 215 (Comm. 1998)

(NYSDOT)

(3) Initial evidence. A petition

for an alien of extraordinary

ability must be accompanied

by evidence that the alien has

sustained national or

international acclaim and that

his or her achievements have

been recognized in the field of

expertise. Such evidence shall

include evidence of a one-time

achievement (that is, a major,

international recognized

award),

or at least three of the

following:

(i) Documentation of the

alien's receipt of lesser

nationally or internationally

recognized prizes or awards

for excellence in the field of

(ii) To show that the alien is

an alien of exceptional ability

in the sciences, arts, or

business, the petition must be

accompanied by at least three

of the following:

(A) An official academic

record showing that the alien

has a degree, diploma,

certificate, or similar award

from a college, university,

school, or other institution of

learning relating to the area of

exceptional ability;

(B) Evidence in the form of

letter(s) from current or

former employer(s) showing

that the alien has at least ten

years of full-time experience

in the occupation for which he

AAO through NYSDOT 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.

Second, it must be shown that

the proposed benefit will be

national in scope.

Third, 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

4

endeavor;

(ii) Documentation of the

alien's membership in

associations in the field for

which classification is sought,

which require outstanding

achievements of their

members, as judged by

recognized national or

international experts in their

disciplines or fields;

(iii) Published material about

the alien in professional or

major trade publications or

other major media, relating to

the alien's work in the field for

which classification is sought.

Such evidence shall include

the title, date, and author of

the material, and any

necessary translation;

(iv) Evidence of the alien's

participation, either

individually or on a panel, as a

judge of the work of others in

the same or an allied field of

specification for which

classification is sought;

(v) Evidence of the alien's

original scientific, scholarly,

artistic, athletic, or business-

related contributions of major

significance in the field;

(vi) Evidence of the alien's

authorship of scholarly articles

in the field, in professional or

major trade publications or

other major media;

(vii) Evidence of the display

of the alien's work in the field

at artistic exhibitions or

or she is being sought;

(C) A license to practice the

profession or certification for

a particular profession or

occupation;

(D) Evidence that the alien has

commanded a salary, or other

renumeration for services,

which demonstrates

exceptional ability;

(E) Evidence of membership

in professional associations; or

(F) Evidence of recognition

for achievements and

significant contributions to the

industry or field by peers,

governmental entities, or

professional or business

organizations.

(iii) If the above standards do

not readily apply to the

beneficiary's occupation, the

petitioner may submit

comparable evidence to

establish the beneficiary's

eligibility.

Borrowed concepts:

8 CFR § 214.1 (h)(4)

(ii) Definitions .

Prominence means a high

level of achievement in the

field of fashion modeling [or

some other field] evidenced

by a degree of skill and

recognition substantially

above that ordinarily

encountered to the extent that

a person described as

prominent is renowned,

leading, or well-known in the

field of fashion modeling [or

minimum qualifications.

By seeking an extra benefit,

the alien or petitioner assumes

an extra burden of proof.

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.

An alien or the petitioner on

the alien’s behalf must

demonstrate a past history of

achievement by the alien with

some degree of influence on

the field as a whole.

Regardless of the alien's

particular experience or skills,

even assuming they are

unique, the benefit the alien's

skills or background will

provide to the United States

must also considerably

outweigh the inherent national

interest in protecting U.S.

workers through the labor

certification process.

Those factors that can be

addressed through the

Permanent Labor

Certification Process are

useless to the NIW

consideration; just get a

labor cert!

5

showcases;

(viii) Evidence that the alien

has performed in a leading or

critical role for organizations

or establishments that have a

distinguished reputation;

(ix) Evidence that the alien

has commanded a high salary

or other significantly high

remuneration for services, in

relation to others in the field;

or

(x) Evidence of commercial

successes in the performing

arts, as shown by box office

receipts or record, cassette,

compact disk, or video sales.

(4) If the above standards do

not readily apply to the

beneficiary's occupation, the

petitioner may submit

comparable evidence to

establish the beneficiary's

eligibility.

some other filed].

Recognized authority means a

person or an organization with

expertise in a particular field,

special skills or knowledge in

that field, and the expertise to

render the type of opinion

requested. Such an opinion

must state:

( 1 ) The writer's qualifications

as an expert;

( 2 ) The writer's experience

giving such opinions, citing

specific instances where past

opinions have been accepted

as authoritative and by whom;

( 3 ) How the conclusions

were reached; and

( 4 ) The basis for the

conclusions supported by

copies or citations of any

research material used.

Below excerpt from:

Mar262010_03B5203.pdf

“USCIS may, in its discretion,

use as advisory opinions

statements submitted as expert

testimony. See Matter of

Caron International, 19 I&N

Dec. 791, 795 (Comm'r.

1988). However, USCIS is

ultimately responsible for

making the final determination

regarding an alien's eligibility

for the benefit sought. Id. The

submission of letters from

experts supporting the petition

is not presumptive evidence of

eligibility; USCIS may, as we

have done above, evaluate the

With regard to the

unavailability of qualified

U.S. workers, the job offer

waiver based on national

interest is not warranted solely

for the purpose of

ameliorating a local labor

shortage, because the labor

certification process is already

in place to address such

shortages. Similarly, the

Department of Labor allows a

prospective U.S. employer to

specify the minimum

education, training,

experience, and other special

requirements needed to

qualify for the position in

question. Therefore, these

qualifications, taken alone, do

not justify a waiver of the

certification process which

takes these elements into

account.

In all cases, while the national

interest waiver hinges on

prospective national benefit, it

clearly must be established

that the beneficiary’s past

record justifies projections of

future benefit to the national

interest. The petitioner’s

subjective assurance that the

beneficiary will, in the future,

serve the national interest

cannot suffice to establish

prospective national benefit if

the beneficiary has few or no

demonstrable achievements.

The ultimate decision as to

eligibility for a national

interest waiver (NIW) is made

through the careful and

6

content of those letters as to

whether they support the

alien's eligibility. See id. at

795. USCIS may even give

less weight to an opinion that

is not corroborated, in accord

with other information or is in

any way questionable. Id. at

795; see also Matter of Soffici,

22 I&N Dec. 158, 165

(Comm'r. 1998) (citing Matter

of Treasure Craft of

California, 14 I&N Dec. 190

(Reg'l. Comm'r. 1972)).

For reasons discussed above,

the letters submitted on appeal

are vague, uncorroborated,

and/or irrelevant to the

proceeding at hand.” At p. 7.

NOTE: Advisory Opinions are

described extensively in 8

CFR § 214.2 (o) and (p) and

elsewhere.

sometimes painstaking

dissection and distillation of

the evidence submitted, in the

context of, the specific

criterion one seeks to prove

and establish. “It is the

position of [USCIS ] to grant

national interest waivers on a

case by case basis ... [as

demonstrated by the evidence

in the individual record] ...,

rather than to establish

blanket waivers for entire

fields of specialization.”

Varying Levels of Quality Between EB-2 and EB-5 Entrepreneur Evidence

In order for an entrepreneur to qualify for an immigrant visa via an EB-2 NIW

petition, it may be helpful to borrow some of the concepts from the EB-5

immigrant investor requirements and evidentiary possibilities. The major

differences being that an EB-2 will have no minimum job creation or capital

investment requirements like the EB-5 entrepreneur and will not obtain a

conditional status or have to apply to have conditions lifted later. As far as I can

imagine, the EB-2 entrepreneur will most likely need to propose a business

venture that is worthy of a National Interest Waiver instead. Fewer may qualify by

joining with a U.S. employer or U.S. partner who will serve as the petitioner and

will obtain the labor certification. Fewer still might successfully “self-petition”

through a wholly or majority owned corporate or other acceptable business entity

and not require a NIW. An EB-5 can get an immigrant visa by creating the

7

minimum number of minimum wage jobs by investing the minimum amount of

capital through the most mundane of projects and then can bail out of that

business and the business world altogether after their conditions have been lifted.

AAO has noted that Congress did create a separate visa category for alien

entrepreneurs, set forth at INA § 203(b)(5) “employment creation” visa

classification, through which an alien must invest at least $500,000 (if located in a

“Targeted Employment Area” (TEA), i.e. rural or high unemployment as defined

in the statute and regulations) or $1,000,000 elsewhere and create at least 10 jobs.

Entrepreneurs are not precluded from seeking EB-2 classification under INA §

203(b)(2) pursuant to the national interest waiver or as an EB-2 with a job offer

and approved labor certification application. As Congress has identified the type of

entrepreneurs it wishes to admit into the United States, however, entrepreneurship

in and of itself is not a basis for a national interest waiver, just as exceptional

ability in and of itself is not a basis for a waiver.

Eligibility for the waiver must rest with the alien's own qualifications rather than

with the position sought. In other words, USCIS generally does not accept the

argument that a given project is so important that any alien qualified to work on

that project must also qualify for a national interest waiver. (See NYSDOT)

“Because, by statute, “exceptional ability” is not by itself sufficient cause for

a national interest waiver, the benefit which the alien presents to his or her

field of endeavor must greatly exceed the “achievements and significant

contributions” contemplated in the regulation at 8 C.F.R. § 204.5

(k)(3)(ii)(F), Because the statute and regulations contain no provision

allowing a lower national interest threshold for advanced degree

professionals than for aliens of exceptional ability, this standard must apply

whether the alien seeks classification as an alien of exceptional ability, or as

a member of the professions holding an advanced degree.” NYSDOT at 218-

219

“USCIS may, in its discretion, use as advisory opinions statements

submitted as expert testimony. See Matter of Caron International, 19 I&N

Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible

for making the final determination regarding an alien's eligibility for the

benefit sought. Id. The submission of letters from experts supporting the

8

petition is not presumptive evidence of eligibility; USCIS may evaluate the

content of those letters as to whether they support the alien's eligibility. See

id. at 795. USCIS may even give less weight to an opinion that is not

corroborated, in accord with other information or is in any way questionable.

Id. at 795; see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998)

(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l.

Comm'r. 1972)).” See Feb232010_04B5203.pdf At p. 9.

EB-5 Concepts Worth Borrowing for an EB-2 NIW Entrepreneur Petition

A comprehensive, detailed, credible Business Plan; See Matter of Ho, 22

I&N Dec. 206 (AAO 1998);

Supported by an Economic Analysis produced using a widely accepted

econometric model to fully analyze the assumptions and comparable

industry data drawn from reliable and verifiable sources in order to make

Predictions and projections1 that will serve the National Interests in any of

the following as they relate to a substantial prospective beneficial effect

in the:

o National Economy,

o National Cultural Interests,

o National Educational Interests, or

o National Welfare of the United States.

EB-5 Concepts Inapplicable to an EB-2 NIW Entrepreneur Petition

The underlying goal of the Business Plan and associated evidence presented in

support of the EB-2 NIW petition package is NOT to prove job creation at a

minimum level through expenditure of a minimum amount of capital in a specific

limited geographic area.

The EB-2 statute is silent as to the painstaking proof of the source and path of

lawful funds, however, in that USCIS is an agency within the Department of

Homeland Security, any irregularity in this aspect will draw scrutiny and probable

1 See generally: 8 CFR § 204.6 and specifically: 8 CFR § 204.6 (j)(4) and (m)(3)

9

referral to someone else to investigate. In the context of an EB-2 entrepreneur,

USCIS is not obligated to painstakingly vet the funds as it is within the EB-5

context. USCIS can literally “pass the buck” to someone else on this issue and let a

dedicated Law Enforcement Agency with the power of arrest go after suspects.

In The National Interest Interest - a sense of concern with and curiosity about someone or something; "an

interest in music"; a reason for wanting something done; "for your sake"; "died for

the sake of his country"; "in the interest of safety"; "in the common interest";

Vested Interest - (law) an interest in which there is a fixed right to present or

future enjoyment and that can be conveyed to another;

National Interest – a concept that varies greatly throughout history and across the

globe, by nation, by culture, by religion, by politics, by morality, by local custom,

and a great many other possibilities. Because there is no accepted consensus, the

meaning is therefore loose enough to be applied to justify almost anything. It is not

hard to forecast that its overuse could render it meaningless in the absence of

certain parameters.

In the legal systems around the world, the concept of something being malum in se

(or per se) versus malum prohibitum might be of some use in this context. Malum

in se (or per se) describes an act that is just bad unto itself, something that just

makes you feel that it is wrong (evil in or unto itself). Malum prohibitum on the

other hand is something that is considered a wrong and is a crime or “unlawful”

just because the law says so.

The EB-2 statute contains certain parameters or contexts within which to build a

case. So, working within the parameters of economics, culture, education and

“general” welfare, a proposition or argument that just makes one react positively,

on a base or gut level, without all that much need for persuasion, if any, might be

seen as beneficial in se (or per se) (good/beneficial in or unto itself).

On the other hand, an idea that takes more effort and for which it takes convincing,

might be termed as: “a hard sell” or “of hidden virtue” or something like that.

People might be less open to something that is “good for them” simply because it

is harder to accomplish, but that does not make it any less viable. Green energy,

green technology, recycling, improved nutrition, and quitting smoking may all be

“hard sells” but it is harder to object to them. The methods used to reach the goal

will be the thing to be judged in the petition via the Business Plan and its

supporting evidence.

10

The Parameters To Be Used To Show Benefits In The National Interest Economy/Economic -

1. The wealth and resources of a country or

region, esp. in terms of the production and

consumption of goods and services

2. Thrifty management; frugality in the

expenditure or consumption of money,

materials, etc.

3. An act or means of thrifty saving; a saving:

He achieved a small economy by walking to

work instead of taking a bus.

4. The management of the resources of a

community, country, etc., especially with a

view to its productivity.

5. The prosperity or earnings of a place:

Further inflation would endanger the national

economy seriously.

6. The disposition or regulation of the parts or

functions of any organic whole; an organized

system or method.

Culture/Cultural -

1. (Sociology) of or relating to a culture or

civilization

2. (Fine Arts & Visual Arts / Art Terms) of or

relating to artistic or social pursuits or events

considered to be valuable or enlightened

3. ... - of or relating to the arts and manners

that a group favors; "cultural events"; "a person

of broad cultural interests"

4. ... - denoting or deriving from or distinctive

of the ways of living built up by a group of

people; "influenced by ethnic and cultural ties"

5. ... - of or relating to the shared knowledge

and values of a society; "cultural roots"

6. ... - relating to the raising of plants or

animals; "a cultural variety"

Education/Educational –

1.Providing knowledge; instructive or

informative an educational toy

2. (Social Science / Education) of or relating to

education

3. Of or relating to the provision of education.

4. Intended or serving to educate or enlighten.

(General) Welfare –

1. Something that aids or promotes well-being;

"for the benefit of all"

2. The health, happiness, and fortunes of a

person or group.

3. Statutory procedure or social effort designed

to promote the basic physical and material

well-being of people in need: "rights to

education, housing, and welfare"

It is Always In The National Interest to Promote the “General Welfare”

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic

Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this

Constitution for the United States of America.

11

Non-Physician or “Standard” National Interest Waiver Criteria Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT)

Development of a case for an EB-2 Entrepreneur’s National Interest Waiver is Progressive.

» » » » » » » » » » » » » » » » » Substantial Intrinsic Merit National in Scope In the National Interest

Eligibility is not established

solely by a showing that the

beneficiary’s field of endeavor

has intrinsic merit. A

petitioner cannot establish

qualification for a national

interest waiver based solely on

the importance of the alien’s

occupation. It is the position

of USCIS to grant national

interest waivers on a case by

case basis as demonstrated

by the evidence in the

individual record, rather than

to establish blanket waivers

for entire fields of

specialization. The intrinsic

merit of the occupation or

field of endeavor must stand

on its own inherent worth

specific to this person in that

job.

Although the actual job may

be in one location or within a

particular region, its overall

effects must be shown to be

more far-reaching or

interconnected more broadly

in the overall analysis. Once

again, this determination is

made on a case by case basis

as demonstrated by the

evidence in the individual

record. The actual and/or

prospective, cumulative

and/or positive, benefits,

effects, consequences,

ramifications, and/or results of

the alien’s contributions

through the proposed work

must go beyond minimal,

confined, limited and local in

scope. The reach of the

alien’s work must be

substantial.

The first two criteria focus on

the occupation and the alien’s

work product, respectively.

This final threshold is

therefore specific to the alien.

The evidence submitted must

persuasively demonstrate that

the national interest would be

adversely affected if a labor

certification were required for

the alien. It must be

established on a case by case

basis as demonstrated by the

evidence in the individual

record 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.

Additional Discussion Substantial Intrinsic Merit National in Scope In the National Interest

Definition of INTRINSIC

1a : belonging to the essential

nature or constitution of a

thing: occurring as a natural

part of something b : being or relating to a

characteristic of the thing itself

instead of the content of any

impurities it contains

2a : originating or due to causes

within a thing itself <an intrinsic

metabolic disease>

b : originating from and

included wholly within

something

“In reaching this conclusion,

we note that the analysis we

follow in “national interest”

cases under section 203(b)

(2)(B) of the Act differs from

that for standard “exceptional

ability” cases under section

203(b)(2)(A) of the Act. In the

latter type of case, the local

labor market is considered

through the labor certification

process and the activity

performed by the alien need

not have a national effect. For

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 (USCIS)] believes it

appropriate to leave the

application of this test as

flexible as possible, although

clearly an alien seeking to

meet the [national interest]

12

compare extrinsic

1a : not forming part of or

belonging to a thing : extraneous

b : originating from or on the

outside; especially : originating

outside a part and acting upon

the part as a whole

Definition of MERIT

1. a. Superior quality or worth;

excellence: a proposal of some

merit vs. an ill-advised plan

without merit.

b. A quality deserving praise or

approval; virtue: a store having

the merit of being open late.

2. Demonstrated ability or

achievement: promotions based

on merit alone.

3. An aspect of character or

behavior deserving approval or

disapproval. Often used in the

plural: judging people according

to their merits.

4. Credit granted for good works.

instance, pro bono legal

services as a whole serve the

national interest, but the

impact of an individual

attorney working pro bono

would be so attenuated at the

national level as to be

negligible. Similarly, while

education is in the national

interest, the impact of a single

schoolteacher in one

elementary school would not

be in the national interest for

purposes of waiving the job

offer requirement of section

203(b)(2)(B) of the Act.

As another example, while

nutrition has obvious intrinsic

value, the work of one cook

in one restaurant could not be

considered sufficiently in the

national interest for purposes

of this provision of the Act.”

(NYSDOT) Footnote #3, p. 217

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.” AAO includes this

passage VERY often in

decisions.

“It’s just not that simple!”

e-mail: joseph.whalen774@gmail.com Revised November 27, 2011