Interim Decision #3363

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Interim Decision #3363

1 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.

In re NEW YORK STATE DEPT OF TRANSPORTATION, Petitioner
In Visa Petition Proceedings
EAC 96 063 51031

Designated by the Acting Associate Commissioner, Programs,
August 7, 1998

(1) An alien seeking immigrant classification as an alien of
exceptional ability or as a member of the professions holding an
advanced degree cannot meet the threshold for a national interest
waiver of the job offer requirement simply by establishing a
certain level of training or education which could be articulated
on an application for a labor certification.

(2) General arguments regarding the importance of a given field of
endeavor, or the urgency of an issue facing the United States,
cannot by themselves establish that an individual alien benefits
the national interest by virtue of engaging in the field or seeking
an as yet undiscovered solution to the problematic issue.

(3) A shortage of qualified workers in a given field, regardless of
the nature of the occupation, does not constitute grounds for a
national interest waiver. Given that the labor certification
process was designed to address the issue of worker shortages, a
shortage of qualified workers is an argument for obtaining rather
than waiving a labor certification.

ON BEHALF OF PETITIONER: Jill Nagy
Lee and LeForestier, P.C.
P.O. Box 1054
33 Second Street
Troy, NY 12180

DISCUSSION

The 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.1

The 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

Interim Decision #3363

2
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 United States.
Section 203(b) of the Act states in pertinent part that:

(2) Aliens Who Are Members of the Professions Holding
Advanced Degrees or Aliens of Exceptional Ability. --

(A) In General. -- Visas shall be made available . . . to
qualified immigrants who are members of the professions
holding advanced degrees or their equivalent or who because
of their exceptional ability in the sciences, arts, or
business, will substantially benefit prospectively the
national economy, cultural or educational interests, or
welfare of the United States, and whose services in the
sciences, arts, professions, or business are sought by an
employer in the United States.

(B) Waiver of Job Offer. -- 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.

It 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 interest.

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:

The Service believes it appropriate to leave the
application of this test as flexible as possible, although

Interim Decision #3363

2 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.

3 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
(continued...)

3
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.

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.

Next, 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.2 We therefore conclude that the
occupation in this case serves the national interest.3

Interim Decision #3363

(...continued)

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.

4 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.

4
The 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.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.

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,

Interim Decision #3363

5 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 field.

6 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.

5
do not justify a waiver of the certification process which takes
these elements into account.5

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.
The 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.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.

The 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.,

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6
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."

A.M. 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.

The 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.

Mr. Shirole continued:
32% 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."

The 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

Interim Decision #3363

7 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

(continued...)

7
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.

Anil 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."

Any 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.

P.Y. 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.7 Special

Interim Decision #3363

(...continued)
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.

8
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.

A 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.

Mr. 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

Interim Decision #3363

9
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.

Based 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.

The 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.
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This 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.

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