AAO approved the NIW petition on appeal, stating that the beneficiary’s efforts have helped many small companies stay in business and had positive effects, individually and cumulatively, beyond the success and longevity of his own business ventures. Now lets look at what factors makes AAO proves the petition.

DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition. The matter is now before the AAO on appeal. The AAO will sustain the appeal and approve the petition.
The petitioning entity seeks to classify the beneficiary pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(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 conunodities trade and supply company that seeks to employ the beneficia~.y as its manager. The beneficiary is the company's founder and sole employee. The petitioner asset1s that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest ofthe United States. The director found 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 an exemption from the requirement ofa job offer would be in the national interest ofthe United 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 eligibility 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 an alien of exceptional ability in business.

In making the above finding, the director relied on the beneficiary's possession of a master of business administration degree from the fnstitut Superieur de Gestion. Possession of an advanced degree is not sufficient for the classification; the beneficiary must also be a member of the
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 degree or its foreign equivalent is the minimum requirement for entry into the occupation." 8 C.F.R. § 204.5(k)(2). The petitioner has not claimed or established that a baccalaureate degree is the minimum requirement for self-employment in commodity sales. Therefore, the petitioner has not claimed that the beneficiary is a member of the professions.

The petitioner has, however, submitted sufficient evidence of the beneficiary's exceptional ability in business under the U.S. Citizenship and Immigration Services (USCIS) regulations at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B), and (F).
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The term "prospective" is included 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. /d.
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of exceptional abili ty are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise.

The petitioner filed the Form I-140 petition on March 6, 2012. The petitioner provided considerably more detail about its business ventures in a 51-page business plan submitted with the petition. In tenns of direct job creation, the business plan indicated the company's intention to hire two workers (an administrative assistant and "an engineer with a sales background" for "logistics and order taking") in the sh01t tenn, and, later, an unspecified number of

The petitioner submitted copies of invoices, photographs, and other evidence relating to its purchase of cement and other materials from suppliers, their storage in warehouses, and sale to customers.
On July 23, 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 influence on the field. The director acknowledged that the petitioner had provided figures regarding the beneficiary (such as the amount of his investment in the company), but the director stated that the petitioner had not established that these figures are unusual or otherwise distinguish the beneficiary in his field.

In response, the beneftciary stated:
With one hundred customers located in nine different States, nine American suppliers located in four different States and more than four international sources of imp011ed materials, my distribution network employs not only direct labor but significant indirect labor nationwide ....

On the demand side, our activity has not only helped small family business to get started, but also to grow employment and maintain it during times of economic downturn....
I currently manage a customer base of approximately eighty family businesses and approximately t\venty three private companies ... .
These companies are located nationwide and they rely solely on me for steady supply, competitive prices and custom credit lines. Many of these companies would not stay in business without our presence in the marketplace.
The petitioner submitted letters, mostly from business owners who credited the beneficiary with helping them remain in business. For example, of -Ripon, Califomia, stated: "When we first started our business it was dif~extend credit to us so that we could purchase material in bulk to have better pricing .... Thanks to [the beneficiary] not only have we been able to grow our business but [we are] also able to compete against larger companies."
now at was general manager of hen he began working with the petitioner in 2005. He stated: ' our p year, e assisted in helping us distribute over 12,000 MT (est. $3.5 million) of our white cement into small and medium pool plasterers and distributors. His hard work assists in benefitting the local regions with work for truckers, warehousing companies, pool plasterers and the small to medium sized business owners."
commercial director of previously headed the ¬

Secondly, they were confusing this Jetter with another one where the author, who had the same first name as • • had done business with the alien.
According to his letter, has done business with the beneficiary, and the director
accurately quoted letter to that effect. The director's decision did not mention ¬•••r mistake him for someone who has done business with the petitioner and the beneficiary.
Counsel appears to suggest that -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 ~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 beneficiary is not responsible for product development, and therefore he would not influence his field by introducing new products or improving existing ones. His impact, instead, arises from his transaction of business. The materials in the record show that his impact extends beyond customer satisfaction. The petitioner has established that the beneficiary's efforts have helped many small companjes stay in business, and have othenvise 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 of the petition.

The benefit of retaining this alien's services outweighs the 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 will be in the national interest ofthe United States.
In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 ; Maller ofOtiende, 26 l&N Dec. 127, 128 (BIA 20 13). Here, the petitioner has met that burden.

ORDER: The appeal is sustained.