dismissed EB-2 NIW Case: Aerial Thermography

i@&dfih data && to 
prevent cl mwarrmted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
SRC 07 023 52834 
PETITION: 
 Immigrant Petition for A\ien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u 
%bet? P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks employment as an 
aerial thermography interpreter at Stockton Infrared Thermographic Services, Inc., Randleman, North Carolina. 
The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in 
the national interest of the United States. The director found that the petitioner has 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: 
(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. 
(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 United 
States. 
Neither the statute nor the pertinent 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, 
I0 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services (CIS)] believes it appropriate to 
leave the application of this test as flexible as possible, although clearly an alien seeking to 
meet the [national interest] standard must make a showing significantly above that necessary 
to prove the "prospective national benefit" [required of aliens seeking to qualify as 
"exceptional."] The burden will rest with the alien to establish that exemption from, or 
waiver of, the job offer will be in the national interest. Each case is to be judged on its own 
merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 2 15 (Commr. 1998), has set forth several factors 
which 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. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver 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 must be noted that, 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. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. 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. 
We also note that the regulation at 8 C.F.R. tj 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 ability are generally subject to the job offerllabor 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. 
exhibit that the etitioner emphasized in the initial submission is a March 21,2006 memorandum 
from The pr- P Project Manager for the Naval Sea Logistics Center, Mechanicsburg, 
Pennsylvania. The memorandum reads, in part: 
[The petitioner] has used his exceptional expertise as a pilot, aerial thermographer, and 
imagery analyst. . . . [I]t is very difficult to find someone with [the petitioner's] level of 
expertise and broad capability to entrust with this important task. 
[The petitioner] has provide his expertise for the benefit of the U.S. Navy, Air Force, NASA, 
and many other DoD [Department of Defense] and federal agencies in performing aerial 
infrared roof moisture surveys. The primary purpose of these surveys being to identify areas 
of entrained moisture contamination in building roofs, provide an accurate assessment of 
current roof condition, and prepare . . . color-coded base maps and detailed AutoCAD 
drawings of each roof to support planning and budgeting of roof repairs. . . . 
In summary, the Navy relies on [the petitioner's] extraordinary expertise, broad capabilities, 
and prodigious experience in this field to help us prevent damage to our shore-based military 
systems and avoid detrimental risks to our national security. 
[The petitioner] was a noteworthy student of mine in Colombia when I taught aerial infrared 
operations to Columbian air force pilots and crew members during a U.S. State Department- 
funded training program in the late-1990's. . . . 
[The petitioner] was an apt student in Colombia and when he came to the United States, I 
spent three months teaching him aerial infrared commercial applications. . . . 
Since qualified and experienced aerial infrared thermography experts are few in number and 
the demand for our services is growing throughout the U.S., [the petitioner's] availability to 
travel widely and engage in a substantial variety of difficult infrared jobs . . . has been 
fortunate for our community. 
The above letters address the intrinsic merit of aerial thermography, but offer little specific information as to 
why it is in the national interest to waive the job offer requirement for the petitioner in particular. 
[The petitioner] is an employee of International Infrared Imaging, Inc., and through 
International Infrared Imaging, Inc., he works in collaboration as an integrated team member 
within our company, Galileo Group, Inc., on a counter-narcotics project with the U.S. 
Embassy, Lima, Peru, Narcotics Affairs Section (NAS). [The petitioner] is responsible for 
piloting missions over Latin American countries, and utilizing his knowledge in aerial remote 
sensing, to seek out and locate drug trafficking routes, as well as drug making facilities, 
which are hidden in the very dense jungles and forests found in these areas of the world. . . . 
Galileo anticipates near-term work in the Middle East supporting US objectives in the war on 
terror. . . . [The petitioner] will be integrated within our team, performing as lead mission 
pilot in the execution of these operations as we employ unique detection technology at low 
altitudes in open desert and rugged mountain terrain to accomplish tactical goals for detection 
of insurgents and terrorists. 
. . . . Although there are many pilots who possess the minimum qualifications for the job, less 
than I% of the existing pilots flying today currently have the existing and exceptional 
expertise to perform [the petitioner's] job duties to a degree that would be very helpful to our 
counter-terrorism and drug control efforts in benefiting our country on a national scale. 
described the petitioner's work for International Infrared Imaging in the present tense, but he 
wrote his letter on November 12 2004 near1 two years before the petitioner filed the petition. That 
company's former President, has indicated that "the company closed down" and the 
petitioner's employment there ended in November 2005. 
 There is no evidence that the petitioner has 
continued working with Galileo Group, or that the "anticipate[d] near-term work in the Middle East" ever 
took place. Furthermore, there is no evidence that the petitioner's intended employment at Stockton Infrared 
Thermographic Services will involve searching for insurgents, drug labs, or similar threats to the United 
States or its troops stationed abroad. 
On March 29, 2007, the director issued a request for evidence, instructing the petitioner to show that he "will 
have an impact that is national in scope to a greater degree tha[n] other pilots, thermographers, and imagery 
analysts" and explain how he will "serve the national interest to a substantially greater degree tha[n] other 
individuals in the field." The director also requested information about the petitioner's achievements since he 
entered the United States in 2003. 
In response, the petitioner submitted a letter from , President of Stockton Infrared 
Thermographic Services, who listed various projects that the petitioner has undertaken at that company. The 
projects mainly fall into four categories: "Infrared steam system analysis," "Infrared surveys of waterways to 
find pollution," "Infrared roof moisture surveys" and "Infrared surveys of landfills, thermal mapping and 
other applications." This information speaks to the intrinsic merit of the petitioner's occupation, without 
showing why it is in the national interest for the petitioner to be the individual performing the work. Mr. 
Stockton claimed that there are "perhaps less than 10 or 15" individuals in the United States "who are able to 
perform these sophisticated aerial infrared remote sensing operations . . . and none are available." Even if the 
petitioner had offered evidence to corroborate this claim, which the petitioner has not done, a shortage of 
qualified workers is generally an argument for obtaining, rather than waiving, a labor certification.' See 
Matter ofNew York State Dept. of Transportation at 218. The asserted scarcity of workers in a given field 
does not justify a blanket waiver for qualified workers in that field. 
indicated that the petitioner's work has involved innovation. For example, "he had to develop 
some remarkable techniques in order to stitch together the thousands of infrared images" captured during a 
"Steam Leak Survey for the Radford Ammunition Plant," and the petitioner "is developing a thermal mapping 
system to generate high resolution ortho-rectified, geo-referenced infrared thermal images as the data is 
collected, real time," in an "Aerial Infrared Survey of Unexploded Ordinance [sic] . . . at Camp Lejeune, NC." 
The record, however, offers no objective benchmark by which to compare the petitioner's innovations with 
the work of other qualified aerial thermography interpreters. 
Counsel asserted that the petitioner's "past accomplishments . . . have changed aerial thermography," but 
there is no evidence that others in the petitioner's field have adopted his finding, or that the petitioner's 
innovation significantly exceed, in quantity or significance, those of others in that field. 
The director denied the petition on September 5, 2007, stating: "The record contains very little evidence 
demonstrating that [the] significant impact of the alien's accomplishments extends beyond a particular circle 
of co-workers and colleagues." The director also noted that a waiver is warranted neither by claims of a small 
pool of workers, nor by assertions that the petitioner is well-trained in his occupation. 
' The petitioner has, in fact, obtained an approved labor certification in another proceeding. See A89 548 821, 1-140 
receipt number LIN 07 176 52938. That petition is still pending as of the date of this decision. 
On appeal, counsel states: 
I respectfully submit that the NIW [national interest waiver] is not requested on the basis that 
the alien . . . is playing an important role in a project(s), nor is the NIW requested "solely for 
the purpose of ameliorating a local labor shortage." Rather, I would submit that the NIW is 
sought to protect the national security. 
Counsel justifies this claim by noting that the petitioner has conducted roof moisture surveys on military 
buildings, thereby enabling timely repairs. While certainly it is more efficient, in terms of resources invested, 
to make repairs early than to wait for catastrophic damage, the AAO is not persuaded that this is a significant 
national security issue. Furthermore, while this may be an argument for conducting roof moisture surveys, it 
does not show that it is in the national interest to ensure that the petitioner is the one conducting the surveys. 
Counsel's arguments on appeal regarding the significance of the petitioner's work all derive from a 
previously submitted letter from the petitioner's employer. Counsel does not overcome the director's finding 
that the record lacks objective documentary evidence to distinguish the petitioner from other qualified 
workers in his field. Simply identifying the petitioner's projects and accomplishments does not establish that 
those achievements are inherently superior to those of others in the same occupation. 
The director, in the denial decision, addressed only the issue of the national interest waiver; the director did not 
address the petitioner's eligibility for the underlying immigrant classification. We shall address that issue here. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. tj 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de nova authority has been long recognized by the 
federal courts. See, e.g., Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
As set forth in the statutory language quoted elsewhere in this decision, section 203(b)(2)(A) of the Act 
establishes two immigrant classifications: one for members of the professions holding an advanced degree, 
and one for aliens of exceptional ability in the sciences, arts or business. The petitioner does not claim to hold 
an advanced degree or its defined equivalent. The petitioner claims exceptional ability in the sciences. 
The regulation at 8 C.F.R. tj 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien must meet in 
order to qualify as an alien of exceptional ability in the sciences, the arts, or business. We note that the regulation 
at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarily encountered" in a given area of endeavor. Therefore, evidence submitted to establish exceptional 
ability must somehow place the alien above others in the field in order to fulfill the criteria below. Qualifications 
possessed by all or most workers in a given field cannot demonstrate "a degree of expertise significantly above 
that ordinarily encountered." For example, every qualified physician has a college degree and a license or 
certification, but it defies logic to claim that every physician therefore shows "exceptional" traits. In order to 
determine what constitutes an "exceptional" aerial thermography interpreter, the petitioner must first establish a 
baseline showing what is ordinarily encountered in the occupation. The petitioner has not done so in this 
proceeding. 
The petitioner claimed to have met the following four regulatory criteria: 
An oflcial academic record showing that the alien has a degree, diploma, certiJicate, or 
similar award@om a college, university, school, or other institution of learning relating to 
the area of exceptional ability. 
Counsel stated that the petitioner "has the equivalent of a degree in Aeronautics Science." An evaluation in 
the record indicates that the petitioner's three years of study at Marco Fidel Suarez Military School of 
Aviation is equivalent to "[tlhree years of undergraduate study in Aeronautics Science from a regionally 
accredited educational institution in the United States." The evaluator stated that this study, combined with 
the petitioner's subsequent work experience, amounts to "the equivalent of a Bachelor's Degree in 
Aeronautics Science from a regionally accredited institution of higher education in the United States." 
8 C.F.R. 8 204.5(k)(3)(ii)(A) calls for "[aln official academic record" of "a degree"; it makes no provision for 
"the equivalent of a degree." Work experience is not an academic degree. Such experience is covered by a 
separate criterion, below. To allow this experience to count twice, once as experience and once as part of a 
"degree," would defeat the regulatory purpose of requiring several different lines of evidence to converge 
toward a finding of exceptional ability. While the petitioner's three years of education appears to have 
culminated in a degree, this degree is below the level of a United States baccalaureate degree. Therefore, if 
most aerial thermography interpreters in the United States have a four-year bachelor's degree, then the 
petitioner possesses a lesser degree in comparison to them. The record, however, is silent as to the usual 
academic credentials of workers in the petitioner's field. 
Furthermore, we note that translated documents from the school the petitioner attended indicate that the 
petitioner studied "the Aeronautic Administration Program," not "Aeronautics Science." His transcript shows 
"flight instruction" and the following courses: 
Administration I and I1 
Psychology and Human Relations 
Research Methodology I and 111 
Physics I and II 
Introduction to Law 
Economics I and I1 
Systems I through 111 
Ethics 
Economics I and I1 
Air Law 
Social and Economic Development 
Mathematics I and 11 
Communication Methodology 
English I through V 
Statistics I and I1 
Instruction Methodology 
Accounting I through I11 
Financial Analysis 
Geopolitics I 
Administrative Contracting 
Human Rights 
Financial Mathematics 
The above course titles, and detailed course descriptions in the record, do not indicate an emphasis on science, 
and there is no indication that the petitioner possesses any academic training specific to aerial thermography 
interpretation. 
The petitioner has not shown that three years of college-level education exceeds the usual educational 
background of aerial therrnography interpreters, and thereby conveys a degree of expertise significantly above 
that ordinarily encountered in that occupation. The petitioner has not met this criterion. 
Evidence in the form of letter(s)Ji.om current or former employer(s) showing that the alien 
has at least ten years of full-time experience in the occupation for which he or she is being 
sought. 
On ETA Form 9089, submitted with the petition, the petitioner claimed the following employment 
experience: 
Pilot Colombian Air Force 12/26/1994 - 11/15/2001 
Aerial Thermography Interpreter International Infrared Imaging, Inc. 1/2/2003 - 12/1/2005 
Aerial Thermography Interpreter Stockton Infrared Thermographic Svcs. 12/1/2005 - present 
As of the petition's filing date, October 31, 2006, the three periods of employment listed above added up to 
more than ten years and eight months of experience.2 Only one employer (International Infrared Imaging), 
however, provided a letter to verify the petitioner's employment. The petitioner's initial submission contains 
no letters or secondary evidence of the petitioner's claimed employment before 2003 or after 2005. A 
subsequent submission-from the petitioner*includes a letter from- affirming the petitioner's 
employment at Stockton Infrared Thermographic Services; CIS records confirm that the petitioner held an 
H-IB visa permitting him to work for that company beginning in late 2005. 
The petitioner claimed that his duties with the Colombian Air Force included flights in which he gathered 
thermo ra hic data but he did not claim that thermographic interpretation was among his primary duties. 
m ndicated that he gave the petitioner instruction in "aerial infrared operations . . . in the 
late- 1990's." later concurred that the petitioner received this training in the late 1990s. 
The record does not indicate that the petitioner had any prior training, let alone experience, in such operations, 
before provided such training. Other descriptions of the petitioner's past work appear to emphasize 
his work as a pilot, rather than his interpretation of data gathered during his flights. Because the petitioner 
seeks employment as an aerial thermography interpreter, experience as anything else (such as a pilot) is not 
"experience in the occupation" as the regulation requires. 
Simply claiming ten or more years of experience is not sufficient to meet the petitioner's burden of proof. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter 
The petitioner did not claim any employment in late 2001 or 2002. CIS records indicate that the petitioner held an 
H-1B visa, 1-129 receipt number SRC 02 215 50182, permitting him to work at an import-export company in Florida 
during part of 2002. His "major field of study" was identified as business administration and management. 
of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). Furthermore, letters from third 
parties attesting to the petitioner's past employment cannot take the place of the required letters from 
employers unless the petitioner can demonstrate the unavailability of the required primary evidence. 8 C.F.R. 
9 103.2(b)(2)(i). The petitioner has not satisfied this regulatory criterion. 
A license to practice the profession or certification for a particular profession or occupation. 
The only license documented in the record is the petitioner's commercial pilot's license. The record is vague 
as to the basic job requirements for aerial thermography interpreters. If one must be a pilot in order to be an 
aerial thermography interpreter, then by definition all aerial thermography interpreters have pilot's licenses 
(unless they fly unlicensed, in violation of federal aviation law). A license that is common to everyone in a 
given occupation cannot demonstrate a degree of expertise significantly above that ordinarily encountered in 
that occupation. 
The petitioner has not established that he holds a license or certification that demonstrates a degree of 
expertise significantly above that ordinarily encountered in the field. Therefore, the petitioner has not met 
this criterion. 
Evidence of recognition for achievements and signiJicant contributions to the industry orjeld 
by peers, governmental entities, or professional or business organizations. 
Counsel states that "several letters of recommendation from peers and from the U.S. Naval Sea Logistics Center" 
(already discussed above in the context of the national interest waiver) fall under this regulatory criterion. The 
construction of the regulation, however, indicates that the various regulatory standards generally refer to evidence 
generated by or resulting from the alien's work, rather than materials solicited by the alien and created 
specifically to support the petition. Only 8 C.F.R. $ 204.5(k)(3)(ii)(B), which pertains to employment experience, 
indicates that the evidence can take the form of letters, and even then, those letters serve to verify length of 
employment, and as such are typically amenable to corroboration in the form of personnel and payroll records. 
While letters written for submission to immigration authorities will receive due consideration, such letters do not 
themselves constitute evidence of recognition as contemplated in the regulatory language. 
The assertions of individual witnesses that the petitioner "has acquired a level of expertise not ordinarily 
encountered" in his field may echo the regulatory definition of exceptional ability, but this does not mean that 
such letters can take the place of the objective, documentary evidence that the regulations so plainly require. The 
record contains no evidence of formal, official recognition for achievements and significant contributions to the 
field from peers, governmental entities, or professional or business organizations. Therefore, the petitioner has 
not satisfied this criterion. 
Pursuant to the above discussion, the petitioner has not established that he qualifies for classification under 
section 203(b)(2) of the Act as an alien of exceptional ability in the sciences. 
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. We affirm the director's finding 
in this regard. Also, we find that the petitioner has not established that he qualifies for classification as an alien of 
exceptional ability in the sciences. Either finding would, entirely by itself, not only justify but require the denial 
of the petition and the dismissal of the appeal. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of 
proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the Form 1-140 petition pending at the Nebraska Service Center, receipt 
number LIN 07 176 52938, filed with an approved labor certification and seeking a different classification on the 
alien's behalf. 
ORDER: The appeal is dismissed.