Immigrant Petitip_il for Alien Wor}(.er as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the IIIU11igtatiop · !!Jld Nationality Act, 8 U.S.C. § ll53(b)(2)
ON BEHALF OF PETITIONER :
INSTRUCTIONS:
Encl()sed please find the decision of the Administrative Appeals Office (AAO) in your case. This is ·<! n()n• pr~cedent decision. The AAO does not announce new constructions Of law nor establish agency Policy thiou:gh non~precedent decisions.
Thank you, q . , I
,?7.on Rosenbe
Chief, AciiJlinistrl:ltive Appeals Office
DISCUSSION: The Director, Texas Service Center, denied the employment-based itpmigrant visa petition. The matter is now before the AAO ort appeal. The AAO will sustain the appeal a,114 approve the petition. the petitioning entity seeks to classify the beneficiary pUrSuant to section 203(b )(2) of the ]jnmigration a11d Nationality Act (the Act), 8 U.S.C. § l153(b)(2), as an alien of exceptional ability in business or as a member of the professions holding an advanced degree. The petitioner is a commodities trade. and supply company that seeks to employ the beneficiary as its manager. The beneficiary j~ the company's founder and sole employee. 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 fotind that the petitioner established that the beneficiary qualifies for classification as a member of the professions holding an advanced degree but that the petitioner had not established that a,t1 ~~emption from the reql!irement of a job offer would be in the national interest ofthe United States. On appeal, the petitioner submits a brief from counsel.
·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 hol4ing advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, o:r bu~ip,ess, will substantially t><mefit prospectively the national economy, cultural ot educational interests, or welf~e of the United States, and whose services in the sciences, arts, professions, or business ate sought by art employer in the United States.
(B)Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in the ·national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the U11ited States. · the petitioner initially claimed that the beneficiary qualifies for classification as an alien of exceptional ability in business. Prior to the denial of . the petition, the director disputed the beneficiary's eligib-uity for that classification, and stated: "the beneficiary is a member of the professions holding an advanced degree." The petitioner accepted this conclusion, while still asserting the beneficiary's eligibility for classification as ail alien of exceptional ability in busi11ess. In rnaking the above finding, the director relied on the beneficiary's posses~ion of a m.®ter of business administration degree from the _ Possession of art advanced degree is not sufficient for the classification; the beneficiary m\lst also be a member of the p. 3 professions, defined as "one of the Occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degtee or its foreign equivalent is tbe minimum requirement for entry into the occupation.;' 8 C.F.R. § 204.5(k)(2). · The petitioner has not claimed or established that a baccalaureat<;: degree is the minimum requirement for self.:.employment in commodity sales. Therefore, the petitioner has not clai_med that th~ b~neficiary is a member of the professions.
The petitioner has, how* ever, submitted sufficient evidence of the beneficiary's exceptional ability in business under the U.S. Citizenship and Imrtiigration Services (USCIS) regulations at S C..F.R. §§ 204.5(k)(3)(ii)(A), (13), and (F). The statute and regulations make no further distinction between art alien of exceptional ability an:d a member of the pro.fessiom; holding an advanced degree, and therefore this substitution niakes no subs!arttiVe difference tO the outcome of the petition or the appeaL There is Il.O disp11te that, apart from the job offer requirement, the beneficiary qualifies for classification tinder section 203(b )(2) ofthe Act.
I
The sole issue iJJ. contention is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certifi¢ation, is in tbe national interest.
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Cortgtess did not provide a specific definitioll of ''in the national interest.'' the Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused OJJ. national interest by increasing the nllffiber and proportion ofvisas for immigrants who would benefit the United SW.tes ecortoiliically and otherwise ... .'' S. R<:p. No. 55, lOlst Cong., 1st Sess., 11 (1989). ' . Supplementary information to regulations implementing the Immigration Act of 1990, P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), states; The .Service [now USCIS] believes it appropriate to leave the ·application of tbis test as flexible as possible, although clearly an alien seeking to meet the [national interest] standard ti:iust make a showing significantly above that necessary to prove the "prospective national benefit" [requited 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 i_n the national interest. Each case is to be judged oil its own merits. In ~e New York State Dept ofTtanspott.ation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) (NYSD01), has set forth several factors which must be considered when evaluating a request for a n:ation~l interest waiver. First, a petitioner must establish that the alien seeks employffient in an. area of substantial intrinsic merit. /d. at 217. Next, l1 petitioner must establish that the proposed benefit will be national in scope. /d. Finally, the petitioner seeking the waiver must establish that the alie~ will serve the national interesl to a substantially greater degree than would an available U.S. Worker having the same minimum qualifications. /d. at 217-18.
While the national interest waiver hinges on prospective national benefit, the petitioner must establish tha.t the alien's past record justifies projections of futUre benefit to the nationaltnte.re.st. /d. at 219. The p. 4 NON.:.PRECEDENT DECISION petitioner's asstrrance that the alien will, in the futl.Jre; sei"Ve the national interest cannot suffice to establish prospective national benefit. The tenn "prospective" is included h~re to reqlJjre future contributions by the alien, rather than to facilitate the entry of art alien with n:o demonstrable prior achievements, !»ld whose benefit to the national interest would thus be entirely speculative. !d. - I
The regulation at . 8 C.F.R. § 20;4.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly abov~ that ordin,arily encountered'' in a given area of endeavor; By statute, aliens of exceptional ability ate generally subject to the job offer/l_abor certification requirement;· they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien s_eeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that · alien can:rtot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. · -The petitioner filed the Fonn I-140 petition on March 6, 2012. In an accompanying letter, the beneficiary stated:
, [T]htoughout my -18 years in the business fielc:l, I have demonstrated an exceptional ability to identify new market oppo~ties and to develop the infrast:ruGture and systems required to turn these opportunities into real business ventures.
In many instances, my work has contributed to the improvement of local and national eco11o.mies in several countries. For example, when I was transferred to the headquarters of my first employer in Argentina with the responsibility of developing new business for its construction division . , . [i]n two short yelll"S I developed the private sector subdivision from the ground up into a $50 million a year enterprise, When I was later a$signed to the i11dustrial division of the company with the responsibility of ctea:ting new business opportunities, I identified t_he opporttmity to enter the l).S. market with the supply of specialized ah.Jminum _alloy wites .... I successfully coordinated and overs.aw the development of the technology ... , the set up of warehousing and distribution channels in the u.s., and the control of price fluctuations and currency exchange risks associated with this conirnodities trl:lding buSilleSS. fu 2005, While working for a German compa,ny that specializes in building cement plants around the world . . . I observed a need in different regions of the . [United States] for a reliable and affordable distributor of taw materials ..... I then deciqed to s.tart my own business venture in the U.S., capitalizing on this market opporturtity, the business contacts that I have d~veloped over the years in the commodities sector and my solid knowledge of the intricacies of this sector.
[The petitioner] is dedicated to the col1lmercialization and distributi<>.ll of raw materials. for the construction industry .... A business of this nature and magnitude is very difficultto set up and it normally requires the dedicated work of several business profe$sio~~is -and the financial and logistical support of a well established p. 5 organization. However, in the context of a less than favorable economic climate, I wa.s able' to single hapdedly jump-start this business enterprise. . . . I managed inventory planning and risk, logistics planning, and, more importantly, receivables risk, as many of the company's clients defaulted on their debts. The· company is now in a $()lid finlU1ciai position, with 52 clients and a strong presence in nine states around the country.
Tbe comnw<:fities sector is largely serviced by large industrial groups that monopolize the business, at times holding supplie$ when they are most needed to force J?rice hikes .... My company can deliver supplies to any customet site in the country within.
24 holl.fs, thanks to our strategic locations in nine states.
'Another way in which my business has been beneficial to U.S. businesses is in the · provision of soft credit lilies . . . at a time when credit to small and inedilinl sized business.es is very restricted ....
My immediate and iopg-term goal is to increase sales volumes by expanding my customer:-base and my .business presence to other stat~s; id~ntifying opportunities for the export of American products; fortrtulating and blending my own brand products; and setting up my OWI1 bagging and trans-loading facility for distribution in the. U.S. and for export to other countries. . The impl~roin.tatio11 of these goals will result in direct or indirect job creation at the local level and furt:het benefit the country's economy by proviQ..ing steady raw materials through fair business practices to inartufactutets in different industries ..
In the course of conducting business for my company, I have not ortly provided good quality taw IiiateriaJs to America,n companies at fair, competitive prices, but also on several occasions I have helped U.S. companies to stay in busines~ or ~Xplllld their operations,
For example, starting in 2006 I developed a matk~t for a local marble and limestone producer in that State, when more than ·2,400 tons of their products were distributed through my company. Thanks to this increase in their production volUirte; was able tp expand and upgrade its crushing and bagging facility in California, which res~llted in job creation and contributed to the growth of the local economy.
Also in 2006, I came to 'the rescue of the largest martuJacturer of electrical conductors in the U.S., which was s.uffering the effects of a nation-wide shortage of aluminum rods .... I was able to arrange for the import. of enough supply of aluminum rods to keep in active prQduction.
When the constru~tion industry in the c()untry came to a near standstill in October of 2008~ I restructured the business quickly by diversifying my product line, At the p. 6 NON-PRECEDENT DECiSION time; the plastics and packaging industry Was facing shortages of Polyethylene Terephthalate (PET), a raw material for the production of plastics .... I was able to secu.r<:: 4,000 to11s. of PET for distribution to plastics manufacturers in the U.S.
In 2009, continuing the diversification of the business, I brokered a major "energy swap" d~.;:tl b~tween~ ·Ohio utility company and a large European mining company.
Through this deal, the U.S.-based utility COJnpany benefited from the purchase or raw materials such as coal, at .competitive prices: This venture also resulted in purchases of U.S.-manuJ;:tctured mini.ng equipment for a value of more than$7 million, as well as the creation of mining and engineering emplQyrn,ent opport\lnities in 0l)i() .
. . . . The personal contacts and impeccable reputation that I have cultivated within the international business community throughout 18 years as a multinational manager have proven to be very valuable to the U.S; economy, when I have been able to secu.re ;:t ste;:tdy supply of raw materials at competitive prices in times of shortages, thereby averting potential production crises.
The petitioner pro vi .<led considerably more detail about its business ventures in a 51-page bus.iness plart submitted with the petition. In terms ()f direct job creation, the· business plan indicated the . company's intention to bite two workers (an administrative assistant and "an engineer with ~ sales background" for''logis{ics and order taking") in the short term, artd, later, an unspecified number of managers and equipment operat<>rs for its pla.nped ''w:rrehousing and bagging operations." Printout$ from t4e petitioner's web site indicate that the company "is a specialized distributor of for the swimming pool plastering industry.'' The "Products" page of the web site shows two products, - The -printouts fr<>m the web site and the company's Facehook page do not show that the company sells anything other than: white cement. Advertjsement _s in conference programs indicate that the company also sells pool sand.
. / I
The petitionet's il.liti}tl submission included witness letters spanning more than 12 years. In a letter dated November 30, 2011, director of Argentina, stated:
[The b~IJeuciary] joined in 1998. [The beneficiary] was hired to develop new business through the development of new markets in geographical areas where our company had rto presence at that time .....
Several new b:usinesses were ~chjeved as a result of negotiations conducted by [the beneficiary]. .... These new businesses were crucial for the s:urviv~l of the CQmpany and its capability to maintain all the existent job positions and developed new jobs in the new areas.
Pe1ge 7
NON-PRECEDENT DECISION
The exception.al work of [the beneficiary] in this company made great changes. He efficiently open[ ed] new markets, the presence of our company in such[] markets lasted for the long term. In some markets, out company developed an important loc~l r~putatiort:•
We are proud to say that [the beneficiary] in this company [was] ~ble to create thousands of jobs, including direct and indire.ct workforce and, through our project execution , we were ~ble to make basic necessities, such as electricity, available for millions of people from South and Central America.
In a November 15, 2011letter, president of stated: , [The beneficiary] presented a project to the company for the productiQp of Specialized All.lnlinlJ1ll Drawn Wires for Mechanical, Welding and Electrical applications. At that time, there were only two companies in the world capable of · making such alloys, Alcan in Canada and Pechiney in France. They C<:>.IJ.trolled the world market. ·
. ·.. .. . . . . . . . . ;··
... Wtth time, we successfully developed the necessary alloys and wtth. [the] help of [the beneficiary] we opened and managed our office iil the USA with [its] own wateshousing [sic] cap~bilities, in California, for distribution throughout the colintry. On Jtme 11, 2007,
Austria, stated·: vice president of
. . . is involved in trading large volumes of commodities a,n;>UIJ.cl the world such as m.c:!tals and minerals, chemi<;;als and plastics, wood and wood produ<;:ts as well as providing logistics, stru~tured finance and financial services ....
The majqrity of the commodities that we supply ate traded Oil a daily basis on the. exchange and prices fluctuate with high volatility. Thus, price risk is a major variable in otlt business. A price drop can trigger clients to cancel purchase(] agreements or re-negotiate on the commodity tettrts for shipment ot storage .
For this · rea§Qn we have established a long t~rm cooperation agreement for the assistance and development of our products with [the petitioner] in the United States .of America. We believe this company has the tra.ining knowledge, and the expertise to monitor our markets, stay in close touch with customers, prospects and atte,nd seminars in order to anticip~te any market moves against our physical purchases ....
Our cooperation, with [the petitioner], begun with the purchase and finance of Portland Cement for distribution in the USA market with over USD 2 Millions in sales in 2006. We are· currently working together to continue to grow this business and_ iii addition to repeat this model into other metals and plastics products.
, The petjtioner submitted copies of invoices, photographs, and other evidence relating tp its purchase ofcement and other materials from suppliers, their storage in warehouses, and sale to customers. On J\llyZ3, 2012, the director issued a request for evidence (RFE)~ stating that the. petitioner's· initial submission did not establish the national scope of the beneficiary's work for the petitioner, or that the beneficiary has a past record of success with some degree of influ.ence on the field.Past record does not show influence or success The director a.cknowledged t}),a~ the petitioner had provided figures regarding the beneficiary (such as the amount ofhis investment in the company), but the director stated that the petitioner had not established that these figtires are unusual or otherwise distinguish the beneficiary in hi~ field.
Ii1 response, the beneficiary stated:
With one hundred customers located.in nine different States, nine American supplier~ located in four different States and mpre than four international sources of imported materials, my distribution network employs not only direct labor but significant indirectJabor llationwid~ ....
On the demand side, ol.ir activity has not only helped small family business to get · stwted, l;>ut . also to grow employment and· maintain it during times· of economjc downturn ....
I curr~ntly ml:l,tlage a customer base of approximately eighty family busi11esses C:llld approximately twenty three priva.te cQmpanies .. ; .
These companies are located nationwide and they rely Solely on me fot steady supply, competitive prices and custom credjt lines. Many of these companies would not stay in business without our presence in the marketplace.
The petitioner submitted letters, rnostly frorn business owners· who credited the beneficiary with helping them remain in business. For e~arople,
California, stated: "When we,_first Started oUt business it was difficult to get vendors· [to] extend credit to 1;15 so that we could pl.irchase material in bulk to have better pricing. '. . .• Tba.ii}(s to [the beneficiary] not only have we been able to grow our business but [We ate] als·o able to compete against larger companies." now at was _general manager of when he began working with the petitioner in 2005. He stated: "hi out peak year, he assisted in helping us distribute over 12,000 MT (est, $3.5 millio11) of our white cement into small and medium pool plasterers and distributors. His ha:rd work assists in benefitting the locai regipns with work for truckers, warehousing companies, pool plasterers and the small to medium sized busines$ owners.'' ·
P~ge . 9
NON-PRECEDENT DECISION cotnmerc.i<:d dirc;:ctor .qf previously headed the
Mt stated:
Ow q}:)jective was to introduce our products in the United States market. ... In a very short period of time he introduced to customer~ that are qualified as the biggest buyers in [the] United State.s ....
Working . with [the beneficiary] w~ an enri~hil}g experience because he is capable t6 manage sales and find new accounts in a[] form that a tr~itional s;des agent or represe,nta~ive 'would never be able to do it · -
.. . . He brought to innovative logistics solutions that made the ce>:r;npany more competitive and allowed growth and consolidation in the m_arket •..
[The benefiCiary] has .marked a n~w tendency in _commodity trading companies ... ..
· [T]he big producers ot traders of taW materials find more feasible to place their product~ through skjllful agents or representatives such a8 [the beneficiary] instead of selling to large distributors. This new model of distribution allows the producer to have a more fluid. commtihication with the final u,ser, rnQre fl~:xibi.i}ty ;md more · competitiveness that is beneficial for the producer and more importantly for the fimd consumer.
. . •' . [The beneficiary] set an example in the industry of trading that is being followe<i by large producers wor.l<iwide, . - . .
·president of California's Califomja, stated: "During th,e 1Ci$t tbree years, [the beneficiary] has provided a stable .source of supply, great servic.e and Strategic credit lines that help[] our company to stay in, business and grow during di{fi_c.ult times·~ ; , now owner of Utah, was fotrnetly the vice president of California, whep the petitioner contracted with that company for shipments into. the _ He "found [the beneficiary] to be a good businessman and more impQrtantly a man of high character.''
.__ ____ -:--~ director of Switzerland, who stated:
Recently, we relied on [the beneficiary's] project assessment for the production qf coal in the state of Ohio. [The beneficiley] participated in finding the tight · pann~rships and· he wa5 responsible fot ensuring logistics; renewing fea$ibility illld ·· pattner$hip agteerp.epts. The projec~ derived in an investment in American equipment and supplies for mote than 7,000,000 us dollars and the bJ.ring of rp.ip.ing engineers . and personnel for the production of25;000:tons ofcoal monthly. This ptojecthad em. important and · positive impact in the coiilmuniW of · County of p. 10 Ohio. [The beneficiary] was n~med Secretary and Treasurer · and perfohned his duties Sutpassing regular standards.
To .corroborate witne$ses' claims about a near-monopoly in the market for pool construction supplies, the petitioner submitted a September 20, 2012 ·story from the web site, reporting: and the manuf~~tmer~ laJ,own in the inciustry as· i ' are being accused ofanti .. competitive activity in ~ laws1,1it th;;tt th~ - pl;rintiffl) · ~e hoping wHI gai.n class action status ....
All [defendants] ate ac.cilsed of violating ~he Sherman Antitrust A.ct, which prohibits a_ct,ivitie~; th~t restrain trade or commerce. also is accused of violating_ the section of the law prohibiting roopopolj~s.
Th.e case was spurred by an investigation involving the Federal Ttade Commission last November. _After · ~ 1 Y2-ye~-hmg inquiry, the FtC accused of pressuring manufacturers not to sell to new distributors entering the market.
'- ·The dir¢CtQr issued a notice of intent to deny the petition on December 3, 2012. The director acknowledged the intrinsic merit and national scope ofthe beneficiary's occupation, but -found that tbe petitioner had not shown that the beneficiary's accomplishments have h~d an imp~ct ap.d influence that distinguish him from others in the field. The director acknowledged the witness letters, and quoted from examples, but stated: "the petitioner did not submit any letters from individuals who have not worked with ( ot Who are not personally acquainted with) the beneficiary. The !_etters of ~;upport speak in general terms . . . [and] do not mention that the beneficiary ha.s irtfltu~Iiced the field, apart from his colleagues a:nd peers.'' In re~ponse to the notice, the beneficiary asserted that labor certificatioh "is not realistic," becau.se he owns .the petitioning company, and the Department o:f Labor ''would not consider the alien c'apable of' being impartial in searching for his tep~acement.'' · · USCIS acknowledges that there are. certain occupations wherein indiViduals are essentially self:employed, cmd thus would have no US, ero:Ployer to apply :for a labor certification. The inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiVer; the petitioner still . niust .. demonstrate that the self..,employed (!lien will serve the national interest tq a subStantially. · · greater degree than· do others. in the same field. NYSDOT at 218 n.5. · The benefiCiary stated that USCJS ''ha~ been proactively reaching out to entrepreneUts," and quotes a USCfS press releaSe regarding the Entrepreneurs in Residence injtia,tiye.~-, The beneficiary made the ieneraJ obse.rvation .that ''[t]he above noted .program is specifically meant_ fot erttreprene.ur~.·· The beneficiary stated that "this web portal . , . holds little rneaning'' if its only purpose is "pointing out pathw::tys that already . existed, without some additional consideration to reta1n th.ose that have ptoveii their contribution to business and society.'' the beneficiary did not identify the "additional consideration ~ '' the press release that the beneficiary q1,1oted did not :appoll,Ilce. ~y policy chan~e. p. 11 NON-PRECEDENt DECISION
Pil_ge 11 · • hlstead, it stated: ''we are working to realize out cuttet1t immigration systen.i~s full potential to attract . . and · retain'; job-creating enterprises. The Entrepreneurs in Residence program enc<?wages . · entrepr~neurs . to seek benefits through already-existing channels~ it has -not created new ones, or ~stablished that entrepreneurs are subject to lower st~dards than t1tose that apply to other intending .. i~igrants.
The petitioner submitted copies .of previously submitt~d letters, einphasi:dng h.is role in helping other busin~sses tore:main viable under difficult econoinic circumstances. He also submitted .a. new letter from senior research analyst at who stated ~
. Part of the [petitioning] company's success is .correlated to [the belleficiary's] ability · to identifY. mwket fluctuatio:ns in markets that the company can .serve. quickly and effie,iently. .
· When d~~Jing with nearly cpmmoditized .product, it is the trust and credibility of the . supplietorganization that differentiates 1tfrmn .hs cornpetito~;s. the credibility of a ·c<;>mpany and the trust it inspires flows ·.directly from those ·of its representatives. · [Jhe beri~fjCiary] Is th~ sole n;:presentative of [the ·petitioner], and it would. be nearly impossiple to find ~ a:ny person who has the experience . to inspire · suqh trust and · projects the integrity that [the beneficiary] inspires and projects~ . . . In the taw materials markets, ce>mpa.nies &uch as try to '·'roll-up" an industry and maximize ·· profitability by exploiting the economies of seal~ that result from suqh a Str~tegy. Many smaller customers who rtnist t>u:y taw inventory from an industcy that has ·materially con~olidated are unable to get the product or the. financing required because they ate ,unable to comniand service from these larger suppliers.
[The petitioner] ·fills · this gap by holding invel)tory and providing financing to these smaller customers. Ania.Zihgly, they are able to do this with i_rn:~ntory that is '- pen!!lhlJ.ble ~ This ·is · aH because of [the beneficiary's] unique ability gained through e~periet)G~ t<> 11<>Jd the n~cessary Inventory while minimizing the risk to [the petition~t]. By hifvi'n:g inventory on hand, [the petitioner] is able to react to any market dislocations created by the activities of the larger material suppliers. · Anotl:ler WJ.tque slcill that [the beneficiary] poss_esses is the ability to obtain financing of his receivable 's so that he qan extend financing to his customer"s when they are : _unable to get any terms from larger competitors .... From experienc(;: In obtaining fin_a.uc_ing for my own companies, I can confidently state that . . . [o ]btainillg _ fihancihg for even the mo~t liquid medium-to-smaller size · [busi~ess] is very difficult. .. . \ . -. . . .
. .'.If[ the beneti~iary] lJ.Ild [the petitioner]were not present in the matketSthey serve, .. it is_ not a stretch to state that· raw material price increa,ses @d availability would claiin the llves of some of its smaller customers.
P~gt! 12
NON-PRECEDENT DECISION
... Thrq~gh [the beneficiary's] experience and diligent efforts, the c9inpa.ny now occupies an admirable location in the supply chain where it not only provides unique servic¢s to it_s cu_stomers, but also offers the same to its suppliers .....
[The petitioner] is a vital supplier of raw material~, especially to sinaJler companies. [The p~titioiJ.er) provides the risk management and purchasing flexibility for smaller manufactutets that larger colllpanies do not wish to s11pply to companies who will not significantly increase their volumes.
The director denied the petition on March 4, 2013. In, the decision, the director repeated passages from earlier notices and stated that the petitioner's response to the notice of intent to deiJ.y iiJ.clud.ed .''additional hmers of support . · .. and information about the USCIS 'Enttepreneut in Re$idence' initiatiVe.'.' The director concluded: "The petitioner h~ not established that the beneficiary stan~s apart from. others in the field. The evidence does not show that the beneficiary already hl,l:S· l:j: track record ' ofsycc~s$ with some degree ofinfluence on the field." · .
On appeal, counsel states: the Petitioner cited the US CIS' "Ent:rep:revel1rs in Residence Initiative," a matter . directly relevant to this . case where the USCIS is specific~lly courting .aliens of this type. How~ver; the only discussion of it in the denial was one line that st~ted that the petitioner submitted "information about the USCJS 'Entrepreneur in Residence' initiative.'' It did not state whether ot not the Director believed that this jniti;:ttive had any bea::ri.n.g on or relevance to the petitioner's case.
Counsel asserts that the petitioner's response to the notice of intent to deny was "l¥gely ignored, @.fairly dis_counted or-given . little weight by the Serv'ice Center DitectoL" Counsel maintains that th~ petitioner had. established the berie~dary's 'influence by submitting "dozens of letters frotn businesses that attested that their activities would have been severely harrlpered or would have alt()gether ceased to exist if it were not fot the services that the alien provides.'' · . The director had acknowledged the letters; and quoted some ofthem, but found their weight limited because of the witnesses' business relationships with the petitioner: The. director, for example, · st<)ted: ' notes that the beneficiary is 'a good businessman and more importaptJy t;1. :rncm of high charact¢r,'" Md the director stated that Mr. had "done business With the petitioner and · the beneficiary."
In the initial appeal stat(;:ment, counsel states: "a letter from Mr. (who we believe was confused with Mr. . . , was discounted too because the author 'has done business with 'the petitioner.; ... [!)his is not true." In a subsequent bri~f, counsel mak~s a simi:lar .':lssertion: a letter from ra business expert, Mr. . , . was discounted too because the · · 1111th9r h,as.. "ijone business with the petitioner.'' Firstly, this is not true. Mr. is an independent bt1siness expert who has not done business with the alien.
Secondly, they were confusing this . letter with another one where the author, who had the same first name as Mr. had done business with the alien.
According to his letter; has done business with the bene:fi~illfY, and the director a.ccuratc;:ly q1,1oted Mr. letter to that effect. . The director's decision did not mention Mf. or mistake him for someon~ who has done business with the petitioner and the benefiCiary. Counsel a.ppears to suggest that Mr. is an independent expert whose assertions did not receive due consideration. The petitioner has provided letters from 'credible witnesses who have provided specific details about the beneficiary's efforts. The record corroborates Mr. _ ro,ain assertions by showing that the petitioner helped many small businesses survive by circumventing ' monopolistic practices by major suppliers and by extending otherwise unavailable credit to·customers. The beneficillfY i.s not responsible for product development, and therefore he Wo1,1ld not influence his field by introducing new products or im,proving existing ones. His impact, instead, arises from his transaction of business. The materials in the record show that his impact ex:tends beyond customer satisfaction. The petitioner has established that the beneficiary's efforts have helped many small . companies stay ih business, and have otherwise had positive effects, individually and cumulatively, beyond the success and longevity of his own business ventures. These factors, rather than the beneficiary's role as an entrepreneur alone, secure the approval ofthe petition.
The benefit of retaining this alien's services· outweighs th·e national interest that is inherent in the labor certification process. Therefore, on the basis of the evidence Submitted, the petitioner has established by a preponderance of the evidence that a waiver of the requirement of an approved labor certification wi}J be in the national interest of the United States. ln visa petition proceedings, the petitioner bears the burden of establishing eligibility fot the imroj:gration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has met that burden.
ORDER: The appeal is sustained.