Degree or an Alien of Exceptional Ability PursQ®t to Section 203(b )(2) of the Irtuniwation and Nationality Act, 8 U.S.C. § 1153(b)(i)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative AppealS Office (AAO) in your case. This is a non•preced~nJ decision. The 1\AO does not announce new constructions .of law nor establish agency policy through non~precedent decisions. If you believe the MO incorrectly applied current law or policy to your case or if you seek to present new facts Jot considefl:ltion, you may file a motion to reconsider or a rnotion to reopen, respectively. Any motion must be filed on a Notice of Appeal of Motion (Fo®l .. 2901:3) Witnin 33 d.!!ys of the date of this decision. Please review the Form I-290B Instructions at http://www.uscis.gov/fornis for tile latest inrormation on fee, filing location, and other requirements. See also 8 C;F.R. § 103.5. Do not file a motion directly witll the AAO.
Thank you,
Chief, Administrative Appeals Office www.uscis.gov .
DISCUSSION: The Director, Texas Service Center, denied the employment"'based immigrant visa pet.ition. The AAO dismissed the petitioner's appeal from that decision. The matter is now before the AAO on a motion to reopen. The AAO will grant the mqtjoh and affirm the denial of the petition. The petition~r filed the Form 1-140 petition on May 25, 2012, seeking classification under section 203(b)(2) of the Immigration and Na.tion.'!.lity Act (the A.ct), 8 U.S.C. § 1153(b )(2), as an alien of exceptional ability in the scien~es. The petitioner seeks einployment as a geologist. Th~ petjticmer a,sserts that an ex~mpti.on from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United St(!.tes. The director denie4 the petition on November 6, 2012, stating that the petitioner qualifies for claSsification as a.member of the professions holding an advanced degree, but tha~ the petitioner h'!.S not established that an exemption from the requirement of a job offer would be in the national interest of the United States. The petitjol)er hli<l established exceptional ability in the sciences, but did not establish eligibility for the waiver. The AAO dismissed the petitioner's appeal on April29, 2013.
On motion, the petitioner submits a brief from counsel aild several supporting exhibits.
A motion to reopen must state the ·hew facts to be . proved. in the reopel)ed proceeding and be Sl,lpported by affidavits or other documentary evidence. 8 C.F.R. § l03.5(a)(2). A motion to reconsider must st(!.te the reason~ for recol)si.deration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect applic(lti.on of law or USCiS policy. A motion to reconsider a decision ort an application ot petition must, when . filed~ also establish that the decision was incorrect based OI) the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). The petitioner specifies that the latest filing is '!.:motion to reopen, not a motion to reconsic;ler, but counsel's brief contains numerous allegations of prior error by the AAO, making the latest filing, in effect, amotion to reconsider, The USCIS re~latiol) at 8 C.F.R. § 103.3(a)(2)(vii) permits the petitioner to supplement an appeal after filing it, but there is no parallel provision for nwUon$ to reopen. The motion must, therefore, be complete at the time of filing. The petitioner filed a timely motion on May 28, 2013.
Three months 1'!-ter, on August 26, 2013, the petitioner submitted four further witness letters dated between May 29, 2013 and A11gust 22, 2013.) two of the new letters are from the petitioner's former collaborators; the third is a follow-up letter from '!. professor who had submitted a letter previously; and the fourth letter is from the pastor of the p~titioner's church (and also an officiaJ of the parochial school attende4 by the petitioner's granddaughter). The .letters are not part of the motion; there is no provi.sjqn for a petitioner to nie a motion and then submit neW evidence at a later date.
Section203(b) of the Act states, in pertinent part:
(2) Aliens Who Are Members of fue Professions Holding Advanced Degrees or Aliens of Exceptional Ability. -
NON-PRECEDENt DECISiON
(A) ) In GeneraL - Visas shall be made available .. . to qlloalified immigr®ts who are members of the professions holding advanced degrees or their equivalent or who . bec~"tJse 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 busines~ are so~ght by an employe:r in the United States.
(B) Waiver of Job Offer ~
(i) . . . the Attorney G{lneral may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) the3t an. alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced degree. The sole issue ill contention is whether the petitioner has established that a waiver of the job offer reqUirement, and thus a labor certification, is iii the n~tional interest.
Neither the statute nor tbe pertinent regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest.'' The Committee on the Ju<iiciary merely noted in its report to the Senate that the comn1ittee had "focused on national interest by increasing the n1lll)ber and proportion of visas for imn1igrants who would benefit the United S~tes economically and othetwise .... " S. Rep . No. 55, lOlst Cong., 1st Sess., 11 (1989).
Supplementary in.form.ation to regulations implementing the Immigration Act ofl990, P.L. 101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897,60900 (Nov. 29, 1991), states: The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it appropriate to leave the application ofthis test as flexible as possible, although clearly an alien seeking to meet the [national interest] stan.dard 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.
In te New York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act Assoc. Comm'r 1998) (NYSDOT), has set forth sevend factors which must be considered when evaluating a request for a national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of substan.tial intrins.ic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be national in scope. /d. Finally, the petitioner seekil).g the waiver must establish that the alien will serve the nl3.tionl:ll interest to a substantially greater degree than would an c:J.Yailable U.S. worker having the sarhe minirtmm qlloalific~tions. /d. at 217-18.
P~g~4
While the national interest waiver hinges on prospective national b~n~fit, the petitjoner must establish that the alien's past record justifies projections offutute benefit to the national interest. Jd. at ~19. The petitioner's assurance that the alien will, in the futute, serve the national interest ca.fiilot suffice to establish prospective nationai benefit Th~ term ''prospective" is included here to require futute contributions by the alien, rather than to f~cilitate the entry of an alien with no demonstrable prior achiev~ents, and whose benefit to the national interest would thus be enfuely specUlative. !d. The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability'' as ''a, d~gree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, a1iens of exceptional ability are genera,lly subject to the job offer/labor certification requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks cl8.Ssitication as an alien of exceptional ability, or as a member of the professions holding ap advanced degree, that alien cannot qua,lify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encotifitered in his or her field of expertise. ·· · On motion, cotifisel states that the petitioner's previou~ evidence ~'demonstrated that the beneficiary is an individual with exceptional academic credentials with a 50 yea,r . track: record of accomplishments." Exceptional ability in the sciences is not grounds for the national interest waiver. Urtdet section 203(b)(2)(A) of the Act, ''irnmigrcmts ... who because of their exceptional ability in the sciences ... will substantially benefit prospectively the ... United St(lte.s" ge_nera,Uy must show that their "services in the sciences ... are sought by an employer in the United States." Und.er tbe plain wording of the statute, the petitioner mu~t do more than show that he possesses exceptional ability in the sciences, artd that his work will substantially benefit the United St;:tt~s. Coiiilsel states~:
Using an American standard of review· it would be reasonable to include that a full professorship for a Doctor in 2 specific scientifjc endeavors Geology and Mineralogy are academic standards that represent one achieving the highe~t level or accomplishments in their particular field. Ii1 addition the Service has ignored anq failed to ~cknowledge ... his position of Head of Laboratory in the and his coveted position of the Chief of theExceptional ability not established
----:::---~-....
· This accomplislunent a,s cioc~ented shouid be sufficient evidence for the Service to reasonably conclude that the persp~tive [sic] benefit to the US "national interest'' has been established by his exceptional ability; 3 post graduate degrees that COililc;>te a levd of expertise significantly above that ordinarily encountered.
I
"[A] level of expertise significantly above that ordinarily encountered" is not grounds for apptov'irtg the waiver. The petitioner has not established that "a full professorship" .represepts ''the highest level of accomplishments in [his] particular field." The petitioner's previous positions of high rank iii what was then the Soviet Union do not establish his continued sta,ndil)g in the field or show that the petitioner has contin1,1ed to make significant contributions to that field. Counsel, on motion, cites p. 5 NON-PRECEDENT DECiSION no precedent decision or other authority to indicate that the petitioner p:res:U:rnptively qualifies for the wcriver on the ba~i~ ofholdiJ:tg .certain degrees or academic or professional titles.
Counsel disputes the use of the adverb "strongly" in a prior decision, stating: "Thi.s ~lleged requirement exceeds tbe scope of the Service's authority sinc.e the standard 'strongly' 'is not articulated by law, statute, or precedent decision." The purpose of th~ present motion is to contest the I1lOSt recent deeision, specifically the AAO's dismissal notice from April 2013. That notice did not include the word "strongly" except in quoting the director's November 2012 denial notice. Dr. stated that the petitioner "is ~ weU-sl!ited candidate to serve as technical expert on complex problems in Geology." A mote forceful assertion comes from Dt. a chemist at the who claims that the petitioner "is the absolute leader in the field of forecasting and gold prospecting/' -Counsel takes exception to an introductory passage from the distnissal notice:
The petitioner's subjective assurance that the alien will, in the future, serve the national interest cartfiot suffice to establish prospective national · benefit. The intention behind the term "prospective" is to requite future contributions by the alic:m., rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thl!S be enti:n;~ly speculative.
Counsel asserts that the petitioner did not rely solely on a ''subjective asstirartce" of futute benefit, l,Uld thC:lt it is a "disingenuous and a capricious insult to the benefici~'s record of achievements and accomplislunents over the past 50 years'' to state that he. "has rto demonstrable prior achievements.,;. Th'e qUoted paragraph serves as introductory lC:\IJ.guage; similar wording appears irtNYSDOT at page 219. the dismissal notice contained rto assertion th~t the petitioner relied solely on '~subjective assurances" or had "no demonstrable prior achievements." That notice acknowledged nllffiero\ls evidentiary submissions, and stated tli_at tbe petitio:ner had satisfied the regulatory standard . at 8\ C.P.R. § 204.5(k)(3)(ii)(F), which concerns "[e]vidence of recognition for achievements ·and signiftccmt contributions to the industry or field by peers, govetninental entities, or professional or business organizations."
The dismissal notice indicated that the petitioner had listed 88 of his scholarly works, but "did not S\lbroit ~opies of the published works themselves, or evidence of their p\lbljca~ion (such as indexes ot d.atabase printo\lts) .... Therefore, the list is not sufficient evidence of the pUblished wor~ or its impact."
On motion; cooo.sel states that the AAO "incorrectly contends that the beneficiary has not st.Il~mitted corroborative primary evidence. This arbitrary concll!sion is not based on a realistic 'flexible' review and an~lysis of the documentation presented." Counsel does not specifically idemify C:\IJ.Y previously submitted exhibit th~t would refl!te the assertion quoted above. Instead, counsel asserts that n~w exhibits C, D, E, and F establish that the petitioner's "theories presente~ in the 'published' documentation [are] in use today, i11 the Russian Federation."
Exhibit C is a photocopied document, "Methodology of forecasting and search m.ineral a.ccumulations." A legend at the bottom of its translated cover page that reads ' ' The document itself, hqwever, does not look like a finished publication. Rather, it appears to be a typed manuscript It shows numerous handwritten annotations and occasional corrections and overtyped letters.
The cover page identified two authors, the petitioner and Ex_hlbit D is an affidavit from the petitioner's spouse, which reads:
I co-authored _ with [the petitioner], as published in 1988 are currently in u~e in the Russian Federation formerly the USSR.
IIJ. almost every field of science to include dentistry, natural sciences, geology, chemistry; physics, metallurgy and medicine, the application of our reseat<:;h is ackno\Yledged.
As a result of the r~search conducted by [the petitioner] and myself, it wa:s determined by the medical profession in Russia: tb.at the innovative theories could be used to treat specific "rare" diseases. The technology advance by [tb.e petitioner] and myself is C\liTently being used in Russia to treat "Sjogren's Syrtdtotne" as affittned by Dr.
Signific~tly, a letter by Dr. application of our findings.
The letter q11oted above claims a 1988 publication date for ' confirms the present day ·.
" whereas the submitted manuscript shows the date "2008." Neither the manuscript nor letter is first-hand evidence of publication. The petitioner's previously submitted chronological Jist of claimed publications did not show any . publications a:ppea.ring in 1988 or 2008. The newly claimed title is not on the list.
Exhibit E is the aforementioned letter from Professor The witness states that, while resea.rcb.ing the autoimmune disorder Sjogren's syndrome, she ''came across a computer forecasting system a.nd the search for mineralization" developed by the petitioner and his spouse~ Prof. states: "With the help of [the] computerprograms we've got very intere~ting results .... [A] [s]ystem created [to] find pa_tt~m~ in geology, was able to answer some questions of medicine."
Exh~bit F on motion is from the petitioner's daughter, identified a.s "a lecturer at [several] " who stated: "In my lectures I used [the petitioner's] works, because he developed a system of methods applicable to almost any field of endeavor, such vast amounts of infottnation it can process.;,
Exhibit F also includes a printout from a promotional web site for _ The page does not mention the petitioner or Pro£ and the petitioner has not otherwise explained its direct relevance to the motion.
The above exb,ibit.s are not objective, independent evidence of published material by the petitioner~ Exhibit C is a manuscript in ail unfinished; unpublished state; exhibits D a,nd F are statements from the petitioner's own wife and daughter; and exhibit E does not mention any published work at all, referring instead to a ''computer forecasting system.'; the petitioner did submit evidence of the publication of but he does not cla,im to have written tha,t book.Plan or projections not corroborated The information about the book does not indicate that geology or mineralogy had produced improvements in diagnosing or treating the disease. The petitioner's previous submissions said nothing about Sjogren's syndrome or any possible . medical applications of his work as a geologist.
Counsel states that the petitioner had submitted a "documented li~?t of published scientific works," and ml,linta,i;nl? that the petitioner ''has published 88 scientific works.'' Counsel cites exhibit G, which is a copy of the previously submitted ·list of claimed publications. A list of claimed publications is not sufficient to establish the existence of those publications. Counsel ma,intains that the petitioner's list ofclaimed publications "is supported by the specifics enumerated in his documentation that ca,ri be verified by the Setvice" including "an affidavit by [the petitioner]."
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, ail applicant or petitioner nuJst dernon:stra,te this and s_ubrnit secondary evidence, such as church or school records, pertinent to the facts at ' issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secQndilry evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of . the event and circumstances. · Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability ofboth primary and second(J,I)' evidence.
Pll.ge8 attestations-by independent experts that are familiar with my research and publications.'' the list and witness letters are not first-hand evidence of publication. The petitioner; <;m mo~ion, submits photocopies of five book covers . and a partially translated photocoJ1y of ' _ a comb.:.bound voh.ifne bearing the date 2002 and the n.~e of _ a power engineering company in Russia. These materials help to establish the existence of ~oroe of the claimed public~tions, but not all of them. The petitioner ·did not explain why comparable evidence is not available for the majority of his claimed published works.
The petitioner'~ - a,~sertion that all of the items on the 88-item list "were published" contradicts the list itself; which refers to several items (including the 200~ document) as ''manuscripts."
Many transla,ted materi<1ls submitted on motion include translator certifications as required by the regulation at 8 C.F.R. § l03.2(b)(3). Lacking this certification is a translated letter from Dr~ which Dr. identified as "the leading research. in.stitute in Russia."
Dr. ~aJ:tslated letter reads, in part:
I)r.
P~ge9 elsewhere in the United States. This change of emphasis does not establish that the petition was approvable at the time of its filing.
Counsel, on motion, states that the AAO is being ''inflexible" and "completely miss~d the point of the submission of the· 'Gold Rush' article." Cou:nsel then states:
If [the petitioner] is an accomplished ind.iyidual of exceptional ability as acknowledged by the Serv-ice and if he is dealing in an area of intrinsic merit ~s previously acknowledged by the Service, then one must conclude that [the petitioner] can prospectively benefit the national intere~t as a whole by implementing his , theories for gold extraction well into the future.
Under section 203(b )(2)(A) of the Act, every alien of exceptional abUity is presumed to offer prospective benefit to the United States. That prospective national benefit, howev(!~, is not sufficient to exempt those individuals from the job offer requirement that appears in the same statutory cla'l,l;~e ; Exceptional ability Is not presumptive or automatfc groWids for the national Interest waiver. Elsewhere on motion, cou11sel states: ''The Service incorrectly and capriciously .. abus.ed its discretio~ by stating that the 'intrinsic merit' guideline relates to the pet_itioner' s occupation rather than that the petitiom~r's individuall¥ [sic], and is only one of several criteria that the petitioner m\lst satisfy in otder to qualify for a w;,river.". Counsel offers no supp.ort for this reading of the "intrinsic merit" guidellne, and a review of the NYSDOT decision refiit~~ it. The relevant portion of that decision reads: ''Several factors must be considered when evaluating a request for a national interest waiver. Fitst, it must be shown th~t the alien. seeks employment in an area ofsubstantial intrinsic merit. This beneficiary's field of endeavor, engineering of bridges, clearly satisfies this first threshold." /d. at Z17. Thus, "intrinsic merit" is indeed olie of "[s]evetal factors." In discussing the ben~fici~ in NYSDOT, it was the "beneficiary's field of endeavor," not the beneficiary individually, who "clearly satisfies this ... threshold."
Counsel states that the dismissal notice "erroneously and incorrectly raised the specious issue that the record does not show any employer in the hydrocarbon industry has expressed an interest in employing the petitioner ' in that capacity.No interest from users, customers or investors This is an abuse of discretion since the Service raised an issue that is tote~,lly i.rrelevant to the issue presented." The petitioner filing a petition originally based specifically on phosphate prospecting, and later, in response to the July 2012 request for evidence, submitted evidence regarding hydrocarbons. To note this significant shift in emphasis after the initial filing is not "totally irrelevant to the issue presented."
Retuniing to the offer to prospect for phosphate at a site 61-Vned by _ _ _ in Florida, counsel states that the petitioner, "upon[] the conc}l..tsion of his survey is qualified to inake a professional recommendation as to the mining and extracting process with a minimum impact o~ the environment. . . . [The petitioner's] erudite understanding of pollution control and its environmenta_l impact was the primary reason for his selection by to survey the aforementioned property." There has been no finding that the petitioner lacks the competence or p. 10 , Page 10 qualifications to survey the site; USCIS acknowledged his exceptional ability a,s a geologist. Exceptional ability, however, is not sufficient to establish eligibility for the waiver.
Th~ dismissal notice contained the following passage: "[panileg~l did not explain how this feasibility study would benefit the United States economy. Ms. earlier predictions of future economic benefit from phosphate recovery rely on the still 1mproven presumption that those deposits exist." On motion, counsel states: "North Florida has one of the largest deposits of phosphate in the US. For the Service to suggest that the survey of1800 acres in FL is an unproven preswnption is a contradiction of published scientific fac:t." Counsel asserts that the conclusions in the dismissal notice amount to ~ '"infle~ible; analysis'' of the record. The pet_itioner submits materials on motion showing the existence of significant phosphate 4ep<;>sits in northern Florida. The dismissal notice did not deny the. existence of phosphate deposits in northern' Florida. Rather, it referred to the presence of such deposits on lot as "unproven." The job offer letter fro:r_n ·resubmitted on motion, specifically asked the petitioner to "determine if there are sufficient phosphate reserves to justify the implementation of a recovery facility." The petitioner did not claim any work experience in the thtee years preceding the filing of the petition, instead describing himself as ~·retired,'; and his list of claimed articles included only one entry after 1989, Specifically a manuscript from 2002, On motion, counsel states:
Age discrimination is not tolerated under federal and state law ....
In addition; the mere; fact that [the petitioner] has been "retired" for the past 3 years does not preclude his ability to continue with his research and to consult with US companies in his areas of expertise .
. . . For the Service to raise an issue about [the petitioner's] age or retirement is . unjustified, unreasonable, and beyond the scope of its authority.
The petitioner's age or retirement do not suggest his lack of ability to contribute in the future. It remains, however, that the petitioner did not establish a,ny ongoing activity at the time he filed the petition. The assertion that the petitioner remains able ''to consult with US companies'' demonstrates his desire for employment, but not the deSire of those companies to employ him. A single offer of short:-term contracting work seeking phosphate deposits for does not establish that the petitioner has significant, realistic prospects to find gold and extract petroleum from shale in the United States. .
The petitioner's list of claimed articles stops at 2002. letter indicates that the petitioner ''was engaged in the analysis of field dat.a. Unfortm:tately, these studies were interrupted. But we very much look forward to the new inonogtaph, which [the petitioner] plans to complete in 2014." The
Comparing t~e petitioner's work to Albert Einstein's 1915 publication of the theory of generaJ relativity, coun.sel asserts that the petitioner's work remains in use today. The record does not establish that the petitioner's work from decades ago remains in use despite advances in his field, or that geologists in the United States ha:ve used, ot plan to use, the petition~r's work.
Counsel states:
Counsel suggests th~t the adjudicator in this matter consult with a: qualified PHD with a degree irt Geology and Mineralogy in or<ier to determine the viability and significance of [the petitioner's] findings ....
The beneficiary ... has specifically requ~sted. il certified copy of the adjudicator's cre<ientials as it relates to his or her qualifications to evaluate a publish® manuscript dealing With a specific process for extracting oil and gas from shale. Beneficiary respectfully submits that the adjudicator is not qualified to evaluate the. scientific signific~ce and the potential benefit to the US economy as a whole without an advanced degree in Geology @cl Mineralogy.
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section .291 of the Act, 8 U.S.C, § 13.61; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). When the petitioner first filed the petition, he did not inqicate that he would. serve the national interest by "extr;;tCting oil and gas from shale." The basis for the initial w~ver requ~st was ''his offer of employment . . . to conduct a feasibility ~dy on an 1,800 acre track [sic] of land in ," which "will result in significant job creation in . FL." Neither the petition, response to the request for evidence, appeal, or motion demonstrate that the petroleum and gas industry in the United States has taken notice of th.~ petitioner's work or expressed an intention of using either his personal services or the methods described in his manuscript.