New York State Department of Transportation,
Int. Dec. 3363 (Comm. 1998)
Interim Decision (BIA) 3363, 1998 WL 483980 (BIA)
United States Department of Justice
Board of Immigration Appeals
Visa Petition Proceedings
EAC 96 063 51031
Designated by the Acting Associate Commissioner, Programs,
August 7, 1998
BEHALF OF PETITIONER: Jill Nagy Lee and LeForestier, P.C. P.O. Box 1054
33 Second Street Troy, NY 12180
employment-based immigrant visa petition was denied by the Director,
Vermont Service Center, and is now before the Associate Commissioner for
Examinations on appeal. The appeal will be dismissed. [Footnote
petitioner seeks to classify the beneficiary pursuant to section
203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2),
as a member of the professions holding an advanced degree. The
petitioner seeks to employ the beneficiary as a civil engineer. 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 beneficiary qualifies for
classification as a member of the professions holding an advanced degree
but that the petitioner had not established that an exemption from the
requirement of a job offer would be in the national interest of the
Section 203(b) of the Act states in pertinent part that:
Aliens Who Are Members of the Professions Holding Advanced Degrees or
Aliens of Exceptional Ability. --
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.
Waiver of Job Offer. -- The Attorney General may, when he deems it to be
in the national interest, waive the requirement of subparagraph (A) that
an alien's services in the sciences, arts, professions, or business be
sought by an employer in the United States.
appears from the record that the petitioner seeks to classify the
beneficiary both as an advanced degree professional and as an alien of
exceptional ability. The record establishes that the beneficiary holds a
Master of Science degree in Civil Engineering (Structures) from Iowa
State University and thus qualifies as a member of the professions
holding an advanced degree. The issue of whether the beneficiary is also
an alien of exceptional ability is moot. The remaining issue is whether
the petitioner has established that a waiver of the job offer
requirement, and thus a labor certification, is in the national
Neither the statute nor Service 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 Service regulations implementing the
Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900
(November 29, 1991), states:
Service believes it appropriate to leave the application of this test as
flexible as possible, although clearly an alien seeking to meet the
(national interest) standard must make a showing significantly above
that necessary to prove the "prospective national benefit" (required of
aliens seeking to qualify as "exceptional.") The burden will rest with
the alien to establish that exemption from, or waiver of, the job offer
will be in the national interest. Each case is to be judged on its own
Several factors 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. This beneficiary's
field of endeavor, engineering of bridges, clearly satisfies this first
threshold. The importance of bridges, and their proper maintenance, is
immediately apparent. It must be stressed, however, that 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 the Service
to grant national interest waivers on a case by case basis, rather than
to establish blanket waivers for entire fields of specialization.
it must be shown that the proposed benefit will be national in scope.
While the alien's employment may be limited to a particular geographic
area, New York's bridges and roads connect the state to the national
transportation system. The proper maintenance and operation of these
bridges and roads therefore serve the interests of other regions of the
country. Moreover, nothing in the record indicates that proper
maintenance of New York's transportation infrastructure would have an
adverse impact on the interests of other regions. [Footnote
2] We therefore conclude that the occupation in this case serves the
national interest. [Footnote 3]
final threshold is therefore specific to the alien. The petitioner
seeking the waiver must persuasively demonstrate that the national
interest would be adversely affected if a labor certification were
required for the alien. The petitioner must demonstrate that it would be
contrary to the national interest to potentially deprive the prospective
employer of the services of the alien by making available to U.S.
workers the position sought by the alien. The labor certification
process exists because protecting the jobs and job opportunities of U.S.
workers having the same objective minimum qualifications as an alien
seeking employment is in the national interest. [Footnote
4] An alien seeking an exemption from this process must present a
national benefit so great as to outweigh the national interest inherent
in the labor certification process.
Stated another way, the petitioner, whether the U.S. employer or the
alien, must establish that the alien will serve the national interest to
a substantially greater degree than would an available U.S. worker
having the same minimum qualifications. It is not sufficient for the
petitioner simply to enumerate the alien's qualifications, since the
labor certification process might reveal that an available U.S. worker
has the qualifications as well. Likewise, it cannot be argued that an
alien qualifies for a national interest waiver simply by virtue of
playing an important role in a given project, if such a role could be
filled by a competent and available U.S. worker. The alien must clearly
present a significant benefit to the field of endeavor.
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. [Footnote
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.
petitioner's subjective assurance that the alien will, in the future,
serve the national interest cannot suffice to establish prospective
national benefit. 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. [Footnote 6] The
inclusion of the term "prospective" is used here to require future
contributions by the alien, rather than to facilitate the entry of an
alien with no demonstrable prior achievements, and whose benefit to the
national interest would thus be entirely speculative.
petitioner, the New York State Department of Transportation (NYSDOT),
has employed the beneficiary since November 1993. The beneficiary's
supervisor, Project Engineer Anil Desai, P.E., describes the function of
the NYSDOT Structures Division as "the provision of professional
engineering services for the rehabilitation, replacement, maintenance
and inspection of bridges." Counsel states that the beneficiary's
"expertise is in prestressed concrete construction and design of
post-tensioning and of curved bridges."
Shirole, P.E., then Director of Structures and Deputy Chief Engineer at
NYSDOT, stated in a November 3, 1995 letter that 60% of New York's
bridges contain steel bearings which are susceptible to earthquake
damage. The beneficiary "has been involved in detailed seismic analysis
using state-of-the- art seismic analysis software." Mr. Shirole observes
that recent earthquakes have demonstrated "the need for careful
implementation of new guidelines for improving the seismic resistance of
bridges." The petitioner has submitted evidence showing that the State
of New York has withstood four earthquakes at or above 5.0 on the
Richter scale since 1884, as well as numerous smaller earthquakes.
beneficiary also analyzes and designs curved bridges, which "can provide
10 to 15% economy over a conventional system comprising of straight
girders." Mr. Shirole asserted "I am personally aware of the national
shortage of the type of expertise (the beneficiary) possesses in the
design of curved girder bridges." Knowledge of specialized design
techniques would appear to be a valid requirement for the petitioner to
set forth on an application for a labor certification. Mr. Shirole's
assertion of a labor shortage, therefore, should be tested through the
labor certification process.
of all bridges in the United States are deficient in some manner. . . .
As more and more of the bridges that were built in the post world war
construction boom reach the end of their service life, the nation's need
for expert engineers with experience in structural rehabilitation has
already started out pacing their availability, indicating their shortage
in the industry's marketplace.
Harold J. Brown, Administrator of the New York Division of the Federal
Highway Administration (FHWA), states that "(t)he work of the FHWA is in
the national interest, as it will benefit the whole of America in
providing a safer and cost-effective traveling way across the nation."
Mr. Brown makes no specific assertion about the beneficiary, offering
only the general statement that "maintenance of a trained and competent
engineering staff by each State DOT is paramount to the success of the
Federal Highway program."
above arguments, and similar testimony from numerous other witnesses,
focus largely on the critical state of the bridges and related
infrastructure in New York and elsewhere in the United States. It is
indisputably true that the nation's bridges play a fundamental role in
the transportation system and, by extension, in the economy itself which
depends on the transportation of goods and mobility of commuters and
tourists. The employer's assertions regarding the overall importance of
an alien's area of expertise cannot suffice, however, to establish
eligibility for a national interest waiver. The issue in this case is
not whether proper bridge maintenance is in the national interest, but
rather whether this particular beneficiary, to a greater extent than
U.S. workers having the same minimum qualifications, plays a significant
role in the preservation and construction of bridges.
Desai asserts that the beneficiary's "qualifications make him ideally
suited for the kind of complicated engineering design that is done
here." George A. Christian, P.E., Director of the Bridge Design Section
at NYSDOT, states that the beneficiary's prior work experience "was a
key consideration in our hiring him in 1993." Lowell Greimann, Chair of
the Department of Civil and Construction Engineering at Iowa State
University, states that the beneficiary's "unique background and
experience in the field of bridge rehabilitation by applying techniques
such as post-tensioning is a resource that can be applied toward the
many bridge projects upcoming in the United States."
objective qualifications which are necessary for the performance of the
occupation can be articulated in an application for alien labor
certification; the fact that the alien is qualified for the job does not
warrant a waiver of the job offer/labor certification requirement. It
cannot suffice to state that the alien possesses useful skills, or a
"unique background." As noted above, 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.
Manjure, Chief Executive of Freyssinet (India) where the beneficiary
worked for two years, states that the beneficiary "had rigorous training
in the use and application of the world famous Freyssinet System of
Post-tensioning." Ayaz H. Malik, P.E., Chairman of the Bridge Design
Committee at NYSDOT, states that the beneficiary "has worked on
innovative projects such as segmental arch structures patented by the
French company 'Matiere'." It is not clear in what capacity the
beneficiary "worked on" the Matiere project; in any event, the
beneficiary's involvement with Freyssinet and Matiere, standing alone,
does not qualify him for a national interest waiver. Simple exposure to
advanced technology constitutes, essentially, occupational training
which can be articulated on an application for a labor certification. [Footnote
7] Special or unusual knowledge or training, while perhaps
attractive to the prospective U.S. employer, does not inherently meet
the national interest threshold. The issue of whether similarly-trained
workers are available in the U.S. is an issue under the jurisdiction of
the Department of Labor.
George A. Christian observes that NYSDOT, and other federal and state
agencies, are in the process of converting to metric measurements. Mr.
Christian notes that the beneficiary's previous experience with metric
measurements is aiding in this transition. The beneficiary's knowledge
of this system would not rise to the level of being in the national
interest for purposes of section 203(b)(2)(B) of the Act, since standard
English measurements can be converted to metric though simple and widely
available arithmetical formulas. Moreover, the metric system is accepted
as the standard throughout most of the industrialized world, and is
therefore commonly known among alien engineers. In any event, the
employer's need for a worker trained in the metric system can be
expressed on an application for a labor certification.
Reports submitted on appeal reflect substantial cost savings on projects
on which the beneficiary worked. The record does not show that these
savings are due to the beneficiary's involvement, or that comparable
projects executed without the beneficiary incurred significantly higher
costs. The reports merely indicated that the projects on which the
beneficiary worked could have cost more than they actually did.
number of the witnesses in this case assert that engineers with the
beneficiary's qualifications are in short supply, yet are desperately
needed because of the deterioration of U.S. bridges. The petitioner has
never clearly explained why the job offer and thus the labor
certification requirement should be waived. Given the asserted shortage
of qualified engineers with the requisite training, and the evident
existence of an offer of permanent employment, the situation appears to
correspond closely to the very situation that the labor certification
process was designed to address.
Christian states in a letter that the beneficiary's "training and
on-the- job experience becomes all the more important since our
engineering staff development is a cost-intensive, time consuming
process that affects the productivity and quality of the design
process." In fact, documents submitted subsequent to the appeal
establish the beneficiary's continued involvement in various projects
undertaken by the petitioner. The Service does not dispute that the
beneficiary provides valuable services to his employer; at issue here is
the effect of such services on the national interest when compared to
others in the profession. The Service also does not dispute the
advantage to the petitioner of retaining qualified staff rather than
training inexperienced, newly hired workers. The contention that no
other experienced workers are available, however, should be tested on an
application for a labor certification. The petitioner has not shown that
it will suffer a substantial disruption in its efforts to maintain New
York's bridges and roads if a national interest waiver is not granted
and the petitioner is required to test the U.S. labor market through the
labor certification process. Furthermore, with regard to experience, the
regulations indicate that ten years of progressive experience is one
possible criterion that may be used to establish exceptional ability.
Because exceptional ability, by itself, does not justify a waiver of the
job offer/labor certification requirement, arguments hinging on the
degree of experience required for the profession, while relevant, are
not dispositive to the matter at hand.
on the above discussion and a careful review of the record, it is
concluded that although the petitioner has shown that the beneficiary is
a competent engineer whose skills and abilities are of value to his
current employer, the petitioner has failed to establish that a job
offer waiver based on national interest is warranted. 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 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 as they relate to the job to be performed. Moreover,
the mere fact that an alien may play an important role in the activity
to be performed by the petitioner is insufficient to establish
eligibility for a job offer waiver based on national interest, since
qualified U.S. workers may be available to play a similar role. 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.
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.
burden of proof in these proceedings rests solely with the petitioner.
Section 291 of the Act, U.S.C. § 1361. The petitioner has not sustained
that burden. Accordingly, the decision of the director denying the
petition will not be disturbed.
denial is without prejudice to the filing of a new petition by a United
States employer accompanied by a labor certification issued by the
Department of Labor, appropriate supporting evidence and fee.
ORDER: The appeal is dismissed.
Return to the
Peng & Weber National Interest Waiver page.
This decision was originally entered on April 27, 1998. The matter has
been reopened on Service motion for the limited purpose of incorporating
revisions for publication.
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There may be cases where the benefit is not only purely local, but may
even be harmful to the national interest. For example, the construction
of a dam may benefit one area while cutting off a crucial water supply
to another area.
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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
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.
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A limited exception to the minimum requirements rule exists, as set
forth in Department of Labor regulations at 20 C.F.R. § 656.21a. (A U.S.
college or university seeking to fill a teaching position can establish
that the alien was found, through a competitive recruitment and
selection process, to be more qualified than U.S. applicants.) This
exception does not apply in this case.
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The Service acknowledges that there are certain occupations wherein
individuals are essentially self-employed, and thus would have no U.S.
employer to apply for a labor certification. While this fact will be
given due consideration in appropriate cases, the inapplicability or
unavailability of a labor certification cannot be viewed as sufficient
cause for a national interest waiver; the petitioner still must
demonstrate that the self-employed alien will serve the national
interest to a substantially greater degree than do others in the same
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It should be noted that the alien's past record need not be limited to
prior work experience. The alien, however, clearly must have
established, in some capacity, the ability to serve the national
interest to a substantially greater extent than the majority of his or
her colleagues. The Service here does not seek a quantified threshold of
experience or education, but rather a past history of demonstrable
achievement with some degree of influence on the field as a whole.
Academic performance, measured by such criteria as grade point average,
cannot alone satisfy the national interest threshold or assure
substantial prospective national benefit. In all cases the petitioner
must demonstrate specific prior achievements which establish the alien's
ability to benefit the national interest.
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The record does not contain any indication that the beneficiary
developed the technology for which Matiere holds the patent. An alien's
job-related training in a new method, whatever its importance, cannot be
considered to be an achievement or contribution comparable to the
innovation of that new method. While innovation of a new method is of
greater importance than mere training in that method, it must be
stressed that such innovation is not always sufficient to meet the
national interest threshold. For example, an alien cannot secure a
national interest waiver simply by demonstrating that he or she holds a
patent. Whether the specific innovation serves the national interest
must be decided on a case by case basis.
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Return to the
Peng & Weber National Interest Waiver page.