EB-2 NIW Entrepreneur Guidance 10-29-2012


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EB-2 NIW Entrepreneur Guidance 10-29-2012

  1. 1. 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 PUBLIC COpy Serviceshttp://www.uscis.gov/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2012/Apr032012_01B5203.pdf CLICK HERE FOR A CLEAN COPY OF THIS POSTED AAO DECISION DATE: OFFICE: NEBRASKA SERVICE CENTER APR 0 3 2012 The self-petitioner seeks employment as the president of a new "company specializing in sales, servicing and export of consumer electronics." The director found that the petitioner qualifies for classification as INRE: Petitioner: a member of the professions holding an advanced degree, but that the petitioner has not established that Beneficiary: an exemption from the requirement of a job offer would be in the national interest of the United States. 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: This sure looks like a would-be entrepreneur seeking a National Interest Waiver (NIW), but that SELF -REPRESENTED the petition was insufficiently supported. 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
  2. 2. Page 2DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visapetition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO willdismiss the appeal.The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (theAct), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. Thepetitioner seeks employment as the president of a new "company specializing in sales, servicing andexport of consumer electronics." At the time he filed the petition, the petitioner was a businessdevelopment specialist at Equus Computer Systems, City of Industry, California. The petitioner assertsthat an exemption from the requirement of a job offer, and thus of a labor certification, is in the nationalinterest of the United States. The director found that the petitioner qualifies for classification as amember of the professions holding an advanced degree, but that the petitioner has not established thatan 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 atthe time the petitioner filed the petition. On appeal, the petitioner refers to his "previous counsel,attorney _ a n d there is no indication that any other attorney participated in the filing ofthe 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 aliens services in the sciences, arts, professions, or business be sought by an employer in the United States.
  3. 3. Page 3The director did not dispute that the petitioner qualifies as a member of the professions holding anadvanced degree. The sole issue in contention is whether the petitioner has established that a waiverof 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 theJUdiciary merely noted in its report to the Senate that the committee had "focused on nationalinterest by increasing the number and proportion of visas for immigrants who would benefit theUnited 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 at56 Fed. Reg. 60897, 60900 (November 29,1991), states:The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate toleave 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 burdenwill rest with the alien to establish that exemption from, or waiver of, the job offer will be in thenational 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.Commr 1998), has set forth several factors which must be considered when evaluating a request fora national interest waiver. First, the petitioner must show that the alien seeks employment in an areaof substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will benational in scope. Finally, the petitioner seeking the waiver must establish that the alien will servethe national interest to a substantially greater degree than would an available United States workerhaving the same minimum qualifications.While the national interest waiver hinges on prospective national benefit, the petItIOner mustestablish that the aliens past record justifies projections of future benefit to the national interest.The petitioners subjective assurance that the alien will, in the future, serve the national interestcannot 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 nodemonstrable prior achievements, and whose benefit to the national interest would thus be entirelyspeculative.The AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "adegree of expertise significantly above that ordinarily encountered" in a given area of endeavor. Bystatute, aliens of exceptional ability are generally subject to the job offer/labor certificationrequirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a givenalien seeks classification as an alien of exceptional ability, or as a member of the professions holdingan advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree ofexpertise significantly above that ordinarily encountered in his or her field of expertise.
  4. 4. Page 4The petitioner filed the Form 1-140 petition on November 2, 2009. On that form, the petitionerstated his intention to serve as "President" of a The record does not indicate that thisfirm existed at the time of filing. Rather, the record reflects the petitioners intention to create anew, as yet unnamed company. That sounds like an "entrepreneur" to me.In an accompanying statement, prior counsel stated that the petitioner "is regarded as a seminalfigure in the economic development of [the] electronics industry in the United States during the lastsix years." Detailing the petitioners employment history since 2003, prior counsel stated that thepetitioner "was responsible for generating $16 million [in] revenue to three different companies,which was directly or indirectly connected to the generation of hundreds of employmentopportunities in the U.S. economy." Prior counsel stated that, given "the current lengthy process ofobtaining 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 ameans for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certificationprocess. NYSDOT, 22 I&N Dec. 223.The AAO notes that, as prior counsel wrote the above words in October 2009, an application forlabor certification was already pending on the petitioners behalf. New Quality Auto RadiatorCorporation, City of Industry, California, applied for a labor certification on the petitioners behalfon June 22, 2009. The company intended to employ the petitioner as an accounting manager.Apart from documentation of the petitioners academic degrees, the bulk of the initial submissionconsisted 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, City of Industry,stateq: [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.
  5. 5. Page 5The remaining three letters were newly written to support the petition. generalmanager 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 cross- functional 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. The two remaining witnesses are the petitioners 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 petitioners] 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 nations 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 petitioners] 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.
  6. 6. Page 6The petitioner submitted no documentary evidence to show the extent of his impact and influence onthe electronics industry, or to allow a meaningful comparison between the petitioners work and thatof other qualified professionals in the same field. Is AAO conflating exceptional and professional?On November 25, 2009, the director issued a request for evidence. The director acknowledged theintrinsic merit of the petitioners occupation, and instructed the petitioner to establish its nationalscope and the petitioners "past record of specific prior achievement, which justifies projections offuture benefit to the national interest." In response, prior counsel cited various statistics regardingthe national reach of the consumer electronics industry. With respect to the petitioners own recordof accomplishment, prior counsel repeated sections of the earlier introductory statement but providedno 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 thecompanys market share among other duties, but time will tell if the petitioners services are trulynational in scope. At this time, there is no verifiable evidence that this is the case."The director acknowledged the petitioners academic and professional background, and quoted fromwitness letters in the record, but found that the petitioner did not submit "enough evidence ... todistinguish the alien from an average U.S. worker who contributes to the company by performinghislher functions."On appeal, the petitioner observes that the "national scope" prong of the national interest test fromNYSDOT applies to the occupation, rather than to the individual alien. The AAO agrees with thepetitioner that a leadership position in a consumer electronics company can have national scope.The AAO will therefore withdraw the directors finding in this regard.There remains the issue of the petitioners impact on his field. The petitioner notes: "As of 2008,Californias gross state product (GSP) is about $1.85 trillion, which is 13% of the United Statesgross domestic product (GDP)." Prior counsel had previously indicated that the petitioner "wasresponsible for generating $16 million [in] revenue to three different companies" in California.According to the petitioners figures, $16 million is less than one 100,000th of Californias GSP. Inthis context, it is clear that simply quoting figures cannot suffice to show that the petitioner has had aparticularly significant impact in his field.The petitioner correctly asserts that one might qualify for the waiver through positive economicimpact, but it does not follow that every contribution, regardless of size, warrants the waiver. Theplain wording of section 203(b )(2) of the Act indicates that aliens who "will substantially benefitprospectively the national economy" are, generally, subject to the job offer requirement. This, on itsface, is enough to rebut the claim that economic benefit automatically qualifies the petitioner for thenational interest waiver.The petitioner states: "I do not believe that ordinary business development specialists, with similaracademic background[s], could double or triple a companys sales within a couple of years." Going
  7. 7. Page 7on record without supporting documentary evidence is not sufficient for purposes of meeting theburden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Commr 1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl Commr 1972)). Thepetitioner offers no evidence on appeal to show that the results he has achieved are out of theordinary in his field. He simply offers his own opinion about whether others could accomplish whathe has done.Furthermore, even accepting the claim that the petitioner has doubled or tripled the sales for his pastemployers, the record fails to establish the standing of those companies before and after thepetitioners involvement. A small company having a negligible impact in its field may remaininsignificant even after sales have tripled. Prior counsel had previously made general claims aboutemployment creation, but the record contains no evidence or even precise figures to show the extentto which the petitioners work has resulted in jobs that otherwise would not exist. The petitionerssubmissions have been so vague and lacking in detail that the AAO cannot determine the extent, ifany, to which the petitioner has benefited the United States economy.When considering the prospective (as opposed to past) benefit arising from the petitioners work,another significant factor arises. Nothing in the record indicates that the petitioner has any priorexperience as a top business executive. His prior job titles have included "business developmentspecialist" and "business analyst." Thus, the petitioner has not established any track record as thepresident of a consumer electronics company, let alone a record that sets him apart from others whoare already working in that capacity. The assertion that his success as a development specialistportends 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 bedetrimental to the economy, particularly given "the current lengthy process of obtaining a laborcertification." By the time the petitioner made this claim on appeal, on May 29, 2010, theDepartment of Labor had already approved the labor certification filed by New Quality AutoRadiator Corporation. On May 14, 2010, again before the date on the brief, that employer filed aForm 1-140 petition seeking the same classification that the petitioner seeks for himself in thepresent proceeding. This last bit appears to be the "kiss of death" or "final nail in the coffin".The director approved the employers petition on October 14,2010. Thus, the petitioner is now thebeneficiary of an approved petition in the same classification he sought for himself. In effect, thepetitioner seeks an exemption from a requirement he has already met. The AAO also notes that thenational interest waiver applies only at the petition stage; it cannot expedite the processing, or affectthe outcome, of a Form 1-485 adjustment application. The approved petition has a priority date morethan four months earlier than the filing date of the present petition, which means that, even if theAAO had approved the petition on appeal, it would have had no effect on the priority date availableto the petitioner. I am glad to see AAO using this opportunity for myth-busting!As is clear from a plain reading of the statute, it was not the intent of Congress that every personqualified to engage in a profession in the United States should be exempt from the requirement of a
  8. 8. , . Page 8 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.
  9. 9. Standard National Interest Waiver (NIW) Supplemental WorksheetFiling 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 Bachelors 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 beneficiarys occupation, the petitioner may submit alternate comparable evidence* to establish the beneficiarys 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 acertified/licensed profession)]. These NIW candidates also need money to start a business and to support themselves and anydependents while getting established. However, without the EB-5 approach, these folks and family can work in the business, too. Thelast criterion to be met will be the big variable. They will need either 10 or more years of experience in business or a MAJORaccomplishment of some sort. “Other” comparable evidence under 8 CFR 204.5(k)(3)(iii) may be substituted when (i) and/or (ii) donot readily apply. Example: some craftsmen, artisans, and professions serve as apprentices or novices before be deemed a master.
  10. 10. Standard National Interest Waiver (NIW) Supplemental WorksheetIV. 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) areDIFFERENT criteria from those required for the EXCEPTIONAL ABILTY classification and are fluid and broad in concept. Theevidence will be variable and MUST be overall convincing. The prospective nature is similar to but must exceed that required for theEXCEPTIONAL ABILITY (EA) classification itself. EA is itself merely one of the two possible threshold classifications whichwould normally require a labor certification application through the Department of Labor. NIW eligibility comes after that stage.
  11. 11. Standard National Interest Waiver (NIW) Supplemental WorksheetAs for the computer geek from above...well, IF it’s a really good program, people will eat it up. As part ofthe evidence underlying an application by an EB-2 entrepreneur, they would need something to back up theclaim. They might have a patent, a copyright, contracts, perhaps overseas offices, a factory, a dedicatedsupply of high-quality unique goods?A professional would need a license or certification for their private practice, but how will they show anational scope? Perhaps one can demonstrate that they will have an association with a national entity in aunique or very high position of great responsibility or influence regarding strategic and/or policy decisions ona 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 economicanalyses (EA’s) based on comprehensive, detailed and credible business plans. The major difference is thatthere 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% ofnational average), State or Federally designated enterprise or redevelopment zones, and socio-economic anddemographic 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 recognizedauthorities 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 withand 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”
  12. 12. Compare & Contrast EB-5 and EB-2 “Entrepreneurs” A Brief Overview or “Entrepreneur Cheat-Sheet” EB-5 Entrepreneurs EB-2 Entrepreneurs Stand Alone Investor Regional Center With Permanent Through National Interest or Group of Affiliated Investor Labor Certification and Waiver (can also self- non-Regional Center Job Offer (can also self- petition alone or through Investors petition through own own qualifying business or qualifying business) by agent or U.S. employer)INA § 203(b)(5) Pub. L. 102-395 §610 INA § 203(b)(2) INA § 203(b)(2)[8 USC § 1153(b)(5)] [8 USC § 1153 Note] [8 USC § 1153 (b)(2)(A)] [8 USC § 1153 (b)(2)(B)(i)] as amendedFile I-526 Petition File I-526 Petition File I-140 Petition File I-140 PetitionProof of having already Regional Center supplied Evidence of eligibility as a Evidence of eligibility as acreated 10 direct full-time EB-5 compliant plans and Professional with an Professional with anpermanent jobs for qualified projections that call for 10 Advanced Degree or Advanced Degree oremployees or submit a direct or indirect full-time equivalent or of Exceptional equivalent or of ExceptionalMatter of Ho compliant jobs and previously vetted Ability(such as in Business) AbilityBusiness Plan transaction documentsPlan to invest minimum Plan to invest minimum Description of business Description of businessrequired amount of capital required amount of capital venture (can be same as for venture (can be same as forand lawful path and source and lawful path and source EB-5 or comparable EB-5 or comparable evidence)of funds documentary of funds documentary evidence)evidence evidence Here the Paths Diverge Greatly Between EB-5 and EB-2 Entrepreneurs Evidence of basic expected Evidence of basic expected substantial prospective substantial prospective benefit benefit to the National to the National Interest** Interest Approved Permanent Labor Evidence* in support of the Certification 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 EntrepreneursEnter on EB-5 Immigrant Visa or Obtain Adjustment and Enter on EB-2 Immigrant Visa or Obtain Adjustment andConditional 2 Year “Green Card” [Conditional Lawful Regular 10 Year “Green Card” [Lawful Permanent ResidentPermanent Resident (CPR) status] (LPR) status] Continue with or implement investment plans. End of Story—Best of LuckFile I-829 Petition to Lift Conditions By Entrepreneur * Specific criteria found in: Matter of New York State Dept.Submit Proof of Full Investment and 10 Qualifying Jobs of Transportation, 22 I&N Dec. 215 (Comm. 1998)Upon approval get new 10 Year “Green Card” or get (NYSDOT) [Adds: Intrinsic Merit & National in Scope to inTERMINATED, issued an NTA and see an IJ and plead the National Interest].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.e-mail: joseph.whalen774@gmail.com (Revised & posted on August 6, 2011.) Page 1
  13. 13. EB-2 Entrepreneur’s FINAL Hurdle for a National Interest WaiverThe following is a paraphrase of a sentence that appears in the vast majority ofAAO National Interest Waiver (NIW) case decisions. What does it really mean inpractical 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 toget there. In order to qualify for an EB-2 visa classification in the first place, youcan 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 qualifiedEB-2 can seek the further additional benefit of a NIW. In that the basicclassification already requires a high showing of evidence and worth, the NIWrequires one to leap an even higher hurdle. Determining exactly how much more isrequired is a highly subjective endeavor. This reality makes NIW eligibility agenuine issue of facts and the interpretation of them. This subjective determinationis a point of contention in most, if not all, such petitions.However, this subjectivity is not without some guidance. EB-2 exceptional abilityhas regulatory criteria as a guide. See 8 CFR § 204.5(k)(3)(ii). A similar visaclassification is also useful in serving as a guide. Compare the EB-2 alien ofexceptional ability minimum qualifications to those of the EB-1 alien ofextraordinary ability in the sciences, arts, education, business, or athletics. See 8CFR § 204.5(h). If you can qualify for the EB-1 (EA) the job offer and 1
  14. 14. concomitant labor certification process is automatically waived by statute. If youcan qualify for EB-1 EA then seeking an EB-2 NIW is moot. Make sure you applyfor the correct classification in the first place. Striving towards the EB-1 EAstandard would seem like a safe bet, at first blush. However, the evidentiaryshowing for the EB-1 EA is qualitatively different from the NIW criteria.These two very similar underlying visa classifications are distinct from each otherbut it is difficult to judge that difference. Then there is also the NIW criteria toconsider. This rather complicated reality makes it a difficult task for applicants(alien self-petitioners) or U.S. employer petitioners and USCIS adjudicators. TheNIW 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 standardsyet may (and likely will) be below EB-1 standards yet will still have to cover atleast one of the four listed National Interest bases: economy, cultural interests,educational interests, or welfare. While these same exact four bases are the thingsthat the EB-2 EA alien must “benefit prospectively” just to qualify for the basicclassification if supported by an approved labor certification, the NIW must haveintrinsic 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 EB-2 Non-Physician NIW Extraordinary Ability Exceptional Ability National Interest WaiverINA § 203 (b)(1)(A) and INA § 203 (b)(2)(A) and INA § 203 (b)(2)(B)(i) and8 CFR § 204.5(h)(2) 8 CFR § 204.5(k)(3)(ii) 8 CFR § 204.5(k)(4)(ii)Extraordinary ability means a Exceptional ability in the (i) NATIONAL INTERESTlevel of expertise indicating sciences, arts, or business WAIVER- Subject to clausethat the individual is one of means a degree of expertise (ii), the Secretary ofthat small percentage who significantly above that Homeland Security may,have risen to the very top of ordinarily encountered in the when the Secretary ofthe field of endeavor. sciences, arts, or business. Homeland Security deems it to be in the national interest, Eligible aliens are either: waive the requirements of Members of the professions subparagraph (A) that an holding advanced degrees or aliens services in the sciences, their equivalent, arts, professions, or business OR be sought by an employer in Individuals who because of the United States. their exceptional ability in the 2
  15. 15. sciences, arts, or business; AND Exemption from job offer. The They will substantially director may exempt the benefit prospectively the requirement of a job offer, and national economy, cultural or thus of a labor certification, educational interests, or for aliens of exceptional welfare of the United States, ability in the sciences, arts, or and business if exemption would Whose services in the be in the national interest. sciences, arts, professions, or To apply for the exemption, business are sought by an the petitioner must submit employer in the United States, Form ETA–750B, Statement but of Qualifications of Alien, in The job offer by a petitioning duplicate, as well as evidence U.S. employer and/or the to support the claim that such usual permanent labor exemption would be in the certification process may be national interest. waived in the national interest.Specific criteria found at: Specific criteria found at: Specific criteria found in:8 CFR § 204.5(h)(3) 8 CFR § 204.5(k)(3)(ii)(A-F) Matter of New York State or (4) Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT)(3) Initial evidence. A petition (ii) To show that the alien is AAO through NYSDOT setfor an alien of extraordinary an alien of exceptional ability forth several factors whichability must be accompanied in the sciences, arts, or must be considered whenby evidence that the alien has business, the petition must be evaluating a request for asustained national or accompanied by at least three national interest waiver.international acclaim and that of the following:his or her achievements have First, it must be shown thatbeen recognized in the field of (A) An official academic the alien seeks employment inexpertise. Such evidence shall record showing that the alien an area of substantial intrinsicinclude evidence of a one-time has a degree, diploma, merit.achievement (that is, a major, certificate, or similar awardinternational recognized from a college, university, Second, it must be shown thataward), school, or other institution of the proposed benefit will be learning relating to the area of national in scope.or at least three of the exceptional ability;following: Third, the petitioner seeking (B) Evidence in the form of the waiver must establish that(i) Documentation of the letter(s) from current or the alien will serve thealiens receipt of lesser former employer(s) showing national interest to anationally or internationally that the alien has at least ten substantially greater degreerecognized prizes or awards years of full-time experience than would an available U.S.for excellence in the field of in the occupation for which he worker having the same 3
  16. 16. endeavor; or she is being sought; minimum qualifications.(ii) Documentation of the (C) A license to practice the By seeking an extra benefit,aliens membership in profession or certification for the alien or petitioner assumesassociations in the field for a particular profession or an extra burden of proof.which classification is sought, occupation;which require outstanding It must be noted that, whileachievements of their (D) Evidence that the alien has the national interest waivermembers, as judged by commanded a salary, or other hinges on prospective nationalrecognized national or renumeration for services, benefit, it clearly must beinternational experts in their which demonstrates established that the aliensdisciplines or fields; exceptional ability; past record justifies (E) Evidence of membership projections of future benefit(iii) Published material about in professional associations; or to the national interest. Thethe alien in professional or petitioners subjectivemajor trade publications or (F) Evidence of recognition assurance that the alien will, inother major media, relating to for achievements and the future, serve the nationalthe aliens work in the field for significant contributions to the interest cannot suffice towhich classification is sought. industry or field by peers, establish prospective nationalSuch evidence shall include governmental entities, or benefit.the title, date, and author of professional or businessthe material, and any organizations. An alien or the petitioner onnecessary translation; the alien’s behalf must (iii) If the above standards do demonstrate a past history of(iv) Evidence of the aliens not readily apply to the achievement by the alien withparticipation, either beneficiarys occupation, the some degree of influence onindividually or on a panel, as a petitioner may submit the field as a whole.judge of the work of others in comparable evidence tothe same or an allied field of establish the beneficiarys Regardless of the aliensspecification for which eligibility. particular experience or skills,classification is sought; even assuming they are Borrowed concepts: unique, the benefit the aliens(v) Evidence of the aliens 8 CFR § 214.1 (h)(4) skills or background willoriginal scientific, scholarly, provide to the United Statesartistic, athletic, or business- (ii) Definitions . must also considerablyrelated contributions of major outweigh the inherent national Prominence means a highsignificance in the field; interest in protecting U.S. level of achievement in the workers through the labor field of fashion modeling [or(vi) Evidence of the aliens certification process. some other field] evidencedauthorship of scholarly articles by a degree of skill andin the field, in professional or Those factors that can be recognition substantiallymajor trade publications or addressed through the above that ordinarilyother major media; Permanent Labor encountered to the extent that Certification Process are a person described as(vii) Evidence of the display useless to the NIW prominent is renowned,of the aliens work in the field consideration; just get a leading, or well-known in theat artistic exhibitions or labor cert! field of fashion modeling [or 4
  17. 17. showcases; some other filed].(viii) Evidence that the alien Recognized authority means a With regard to thehas performed in a leading or person or an organization with unavailability of qualifiedcritical role for organizations expertise in a particular field, U.S. workers, the job offeror establishments that have a special skills or knowledge in waiver based on nationaldistinguished reputation; that field, and the expertise to interest is not warranted solely render the type of opinion for the purpose of(ix) Evidence that the alien requested. Such an opinion ameliorating a local laborhas commanded a high salary must state: shortage, because the laboror other significantly high certification process is alreadyremuneration for services, in ( 1 ) The writers qualifications in place to address suchrelation to others in the field; as an expert; shortages. Similarly, theor Department of Labor allows a ( 2 ) The writers experience prospective U.S. employer to(x) Evidence of commercial giving such opinions, citing specify the minimumsuccesses in the performing specific instances where past education, training,arts, as shown by box office opinions have been accepted experience, and other specialreceipts or record, cassette, as authoritative and by whom; requirements needed tocompact disk, or video sales. qualify for the position in ( 3 ) How the conclusions question. Therefore, these(4) If the above standards do were reached; and qualifications, taken alone, donot readily apply to the not justify a waiver of thebeneficiarys occupation, the ( 4 ) The basis for the certification process whichpetitioner may submit conclusions supported by takes these elements intocomparable evidence to copies or citations of any account.establish the beneficiarys research material used.eligibility. In all cases, while the national Below excerpt from: interest waiver hinges on Mar262010_03B5203.pdf prospective national benefit, it clearly must be established “USCIS may, in its discretion, that the beneficiary’s past use as advisory opinions record justifies projections of statements submitted as expert future benefit to the national testimony. See Matter of interest. The petitioner’s Caron International, 19 I&N subjective assurance that the Dec. 791, 795 (Commr. beneficiary will, in the future, 1988). However, USCIS is serve the national interest ultimately responsible for cannot suffice to establish making the final determination prospective national benefit if regarding an aliens eligibility the beneficiary has few or no for the benefit sought. Id. The demonstrable achievements. submission of letters from experts supporting the petition The ultimate decision as to is not presumptive evidence of eligibility for a national eligibility; USCIS may, as we interest waiver (NIW) is made have done above, evaluate the through the careful and 5
  18. 18. content of those letters as to sometimes painstaking whether they support the dissection and distillation of aliens eligibility. See id. at the evidence submitted, in the 795. USCIS may even give context of, the specific less weight to an opinion that criterion one seeks to prove is not corroborated, in accord and establish. “It is the with other information or is in position of [USCIS ] to grant any way questionable. Id. at national interest waivers on a 795; see also Matter of Soffici, case by case basis ... [as 22 I&N Dec. 158, 165 demonstrated by the evidence (Commr. 1998) (citing Matter in the individual record] ..., of Treasure Craft of rather than to establish California, 14 I&N Dec. 190 blanket waivers for entire (Regl. Commr. 1972)). fields of specialization.” 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.Varying Levels of Quality Between EB-2 and EB-5 Entrepreneur EvidenceIn order for an entrepreneur to qualify for an immigrant visa via an EB-2 NIWpetition, it may be helpful to borrow some of the concepts from the EB-5immigrant investor requirements and evidentiary possibilities. The majordifferences being that an EB-2 will have no minimum job creation or capitalinvestment requirements like the EB-5 entrepreneur and will not obtain aconditional status or have to apply to have conditions lifted later. As far as I canimagine, the EB-2 entrepreneur will most likely need to propose a businessventure that is worthy of a National Interest Waiver instead. Fewer may qualify byjoining with a U.S. employer or U.S. partner who will serve as the petitioner andwill obtain the labor certification. Fewer still might successfully “self-petition”through a wholly or majority owned corporate or other acceptable business entityand not require a NIW. An EB-5 can get an immigrant visa by creating the 6
  19. 19. minimum number of minimum wage jobs by investing the minimum amount ofcapital through the most mundane of projects and then can bail out of thatbusiness and the business world altogether after their conditions have been lifted.AAO has noted that Congress did create a separate visa category for alienentrepreneurs, set forth at INA § 203(b)(5) “employment creation” visaclassification, 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 definedin 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 offerand approved labor certification application. As Congress has identified the type ofentrepreneurs it wishes to admit into the United States, however, entrepreneurshipin and of itself is not a basis for a national interest waiver, just as exceptionalability in and of itself is not a basis for a waiver.Eligibility for the waiver must rest with the aliens own qualifications rather thanwith the position sought. In other words, USCIS generally does not accept theargument that a given project is so important that any alien qualified to work onthat 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 (Commr. 1988). However, USCIS is ultimately responsible for making the final determination regarding an aliens eligibility for the benefit sought. Id. The submission of letters from experts supporting the 7
  20. 20. petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support the aliens 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 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 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 PetitionThe underlying goal of the Business Plan and associated evidence presented insupport of the EB-2 NIW petition package is NOT to prove job creation at aminimum level through expenditure of a minimum amount of capital in a specificlimited geographic area.The EB-2 statute is silent as to the painstaking proof of the source and path oflawful funds, however, in that USCIS is an agency within the Department ofHomeland Security, any irregularity in this aspect will draw scrutiny and probable1 See generally: 8 CFR § 204.6 and specifically: 8 CFR § 204.6 (j)(4) and (m)(3) 8
  21. 21. 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-5context. USCIS can literally “pass the buck” to someone else on this issue and let adedicated Law Enforcement Agency with the power of arrest go after suspects. In The National InterestInterest - a sense of concern with and curiosity about someone or something; "aninterest in music"; a reason for wanting something done; "for your sake"; "died forthe 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 orfuture enjoyment and that can be conveyed to another;National Interest – a concept that varies greatly throughout history and across theglobe, 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, themeaning is therefore loose enough to be applied to justify almost anything. It is nothard to forecast that its overuse could render it meaningless in the absence ofcertain 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. Malumin se (or per se) describes an act that is just bad unto itself, something that justmakes you feel that it is wrong (evil in or unto itself). Malum prohibitum on theother 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 acase. 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 beseen 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 itis 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 goalwill be the thing to be judged in the petition via the Business Plan and itssupporting evidence. 9
  22. 22. The Parameters To Be Used To Show Benefits In The National InterestEconomy/Economic - Culture/Cultural -1. The wealth and resources of a country or 1. (Sociology) of or relating to a culture orregion, esp. in terms of the production and civilizationconsumption of goods and services 2. (Fine Arts & Visual Arts / Art Terms) of or2. Thrifty management; frugality in the relating to artistic or social pursuits or eventsexpenditure or consumption of money, considered to be valuable or enlightenedmaterials, etc. 3. ... - of or relating to the arts and manners3. An act or means of thrifty saving; a saving: that a group favors; "cultural events"; "a personHe achieved a small economy by walking to of broad cultural interests"work instead of taking a bus. 4. ... - denoting or deriving from or distinctive4. The management of the resources of a of the ways of living built up by a group ofcommunity, country, etc., especially with a people; "influenced by ethnic and cultural ties"view to its productivity. 5. ... - of or relating to the shared knowledge5. The prosperity or earnings of a place: and values of a society; "cultural roots"Further inflation would endanger the national 6. ... - relating to the raising of plants oreconomy seriously. animals; "a cultural variety"6. The disposition or regulation of the parts orfunctions of any organic whole; an organizedsystem or method.Education/Educational – (General) Welfare –1.Providing knowledge; instructive or 1. Something that aids or promotes well-being;informative an educational toy "for the benefit of all"2. (Social Science / Education) of or relating to 2. The health, happiness, and fortunes of aeducation person or group.3. Of or relating to the provision of education. 3. Statutory procedure or social effort designed4. Intended or serving to educate or enlighten. 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. 10
  23. 23. Non-Physician or “Standard” National Interest Waiver CriteriaMatter 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 InterestEligibility is not established Although the actual job may The first two criteria focus onsolely by a showing that the be in one location or within a the occupation and the alien’sbeneficiary’s field of endeavor particular region, its overall work product, respectively.has intrinsic merit. A effects must be shown to be This final threshold ispetitioner cannot establish more far-reaching or therefore specific to the alien.qualification for a national interconnected more broadly The evidence submitted mustinterest waiver based solely on in the overall analysis. Once persuasively demonstrate thatthe importance of the alien’s again, this determination is the national interest would beoccupation. It is the position made on a case by case basis adversely affected if a laborof USCIS to grant national as demonstrated by the certification were required forinterest waivers on a case by evidence in the individual the alien. It must becase basis as demonstrated record. The actual and/or established on a case by caseby the evidence in the prospective, cumulative basis as demonstrated by theindividual record, rather than and/or positive, benefits, evidence in the individualto establish blanket waivers effects, consequences, record that the alien will servefor entire fields of ramifications, and/or results of the national interest to aspecialization. The intrinsic the alien’s contributions substantially greater degreemerit of the occupation or through the proposed work than would an available U.S.field of endeavor must stand must go beyond minimal, worker having the sameon its own inherent worth confined, limited and local in minimum qualifications.specific to this person in that scope. The reach of thejob. alien’s work must be substantial. Additional Discussion Substantial Intrinsic Merit National in Scope In the National InterestDefinition of INTRINSIC “In reaching this conclusion, Supplementary information to we note that the analysis we regulations implementing the1a : belonging to the essential follow in “national interest” Immigration Act of 1990nature or constitution of a cases under section 203(b) (IMMACT), published at 56thing: occurring as a natural (2)(B) of the Act differs from Fed. Reg. 60897, 60900part of something that for standard “exceptional (November 29, 1991), states:b : being or relating to acharacteristic of the thing itself ability” cases under section 203(b)(2)(A) of the Act. In the “The Service [now U.S.instead of the content of any Citizenship and Immigrationimpurities it contains latter type of case, the local labor market is considered Services (USCIS)] believes it2a : originating or due to causeswithin a thing itself <an intrinsic through the labor certification appropriate to leave themetabolic disease> process and the activity application of this test asb : originating from and performed by the alien need flexible as possible, althoughincluded wholly within not have a national effect. For clearly an alien seeking tosomething meet the [national interest] 11
  24. 24. compare extrinsic instance, pro bono legal standard must make a1a : not forming part of or services as a whole serve the showing significantly abovebelonging to a thing : extraneous national interest, but the that necessary to prove theb : originating from or on the impact of an individual "prospective national benefit"outside; especially : originating attorney working pro bono [required of aliens seeking tooutside a part and acting upon would be so attenuated at the qualify as "exceptional."]the part as a whole national level as to be The burden will rest with theDefinition of MERIT negligible. Similarly, while alien to establish that education is in the national exemption from, or waiver of,1. a. Superior quality or worth; interest, the impact of a single the job offer will be in theexcellence: a proposal of some schoolteacher in one national interest. Each case ismerit vs. an ill-advised plan elementary school would not to be judged on its ownwithout merit. be in the national interest for merits.” AAO includes thisb. A quality deserving praise or purposes of waiving the job passage VERY often inapproval; virtue: a store having offer requirement of section decisions.the merit of being open late. 203(b)(2)(B) of the Act. As another example, while2. Demonstrated ability or nutrition has obvious intrinsicachievement: promotions basedon merit alone. value, the work of one cook in one restaurant could not be3. An aspect of character or considered sufficiently in the “It’s just not that simple!”behavior deserving approval or national interest for purposesdisapproval. Often used in the of this provision of the Act.”plural: judging people according (NYSDOT) Footnote #3, p. 217to their merits.4. Credit granted for good works.e-mail: joseph.whalen774@gmail.com Revised November 27, 2011 Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com, c=US Date: 2012.10.29 22:38:42 -0400 12