dismissed EB-2 NIW Case: Aerospace Engineering

(b)(6)
DATE: DEC 1 5 2014 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien 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. § 11 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
· This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-29013) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requil·ements. 
See also 8 C.F.R. § 10 3.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dism iss the 
appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner states that he seeks employment as an aerospace engineering researcher and director of the 
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 qualifies for classification as a member of the professions 
holding an advanced degree, but 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. 
On appeal, the petitioner submits a statement and a separate affidavit. 
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. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor 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, lOl st Cong., 1st Sess., 11 (1989). 
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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 U. S. Citizenship and Immigration Services (U SCIS)] 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. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm' r 1998) 
(NYSDOT), has set forth several 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 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. ld. 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. Id. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. Jd. at 219. The 
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 p rio r 
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 ability are generally subject to the job offer/labor certification requirement; th e y are not 
exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks class ification 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 sign ificantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on August 29, 2013. An 
accompanying statement included the follow ing assertions: 
[The petitioner's] unique and comprehensive research knowledge in aerospace 
engineering as well as the overall nation [sic] defense and his design and exper1 
consulting abilities, serves the national interest. ... 
[The petitioner] worked for the establishment 
of [the] 
charge of 
at 
[Later, the petitionerl w as m 
[at the] . ___ _ 
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� 
======== · .. followed by serving 
as Director of 
His distinguished research and investigation experiences and proven track record 
conclusively demonstrate that he can be expected to continue servicing the U.S. 
national interest to a significantly greater extent than other well-trained Korean­
language human resource[s] .. .. 
The attached testimonial and documentary evidence unambiguously establish that 
[the petitioner] is widely recognized as playing a highly innovative role tha t is 
unquestionably at the forefront of this aerospace engineering field. He is a 
foundational figure in furthering the development and advancement of the aircraft 
design and plane engineering in which is becoming essential with the 
world's growing technologies being utilized in improving the national defense .... 
[I]n recognition of his accomplishments in his field, he was appointed as a manager in 
the field of international cooperation by the 
[H] e was given two awards from the 
_ 
in .. .. Based on his significance for the national security, [the 
petitioner] was awarded [a] Presidential Citation from the President of 111 
in the area of Science and Technology Promotion .. .. In a total of 18 
distinguished persons of ... national merit were given the presidential citation . .. . 
[The petitioner] plans to establish a technology consulting firm, which will not only 
provide high quality services related to national defense matters in terms of technical, 
legal and policy issues but also create various employment opportunities .. .. 
[The petitioner J, who is one of the leading engineer[ s] and researcher[ s] in Korean 
and international combat aircraft society, will make great contributions to the 
development of next generation fighter[s] and sales and marketing related activities 
for American combat weapon production corporations. 
In a personal statement, entitled "Personal Expertise and Business Plan," the petitioner described hi: 
intended future employment: 
I would like to establish [the] 
_ . 
with 
employment of experts. By utilizing the current networks in Korea and the U.S., and 
establishing the following center in the U.S., it will be possible to provide high­
quality services and enable the entrepreneurs from both countries to receive potential 
benefits ... . 
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The will be an organization of experts that is wholly responsible for 
technology, policy, and legal matters related to national defense. It will be a 
specialized organization that provides a one-stop, comprehensive research and 
consultation on the technical and political requirements that will inevitably arise 
during Korea's development in the defense industry. The will serve 
professional clients in the U.S. defense industry, international defense industry, U.S. 
defense agencies, and the Department of Defense including the various branches of 
the military. 
The petitioner claimed no prior experience running an organization like the Rather, his past 
experience was in the South Korean Air Force, including some teaching responsibili ties at the 
In describing the and his intended du ties there, the 
petitioner did not mention aerospace engineering research, although he identified his intended 
occupation as "researcher" on Part 6, line 1, of Form I-140. An organization chart for the 
indicated that the entity would encompass three divisions, with the follow ing functions: 
I Defense Technology Division I Defense Policy Division J Defense Legal Division 
The petitioner submitted several letters in support of the petition. Dr. associate 
professor at , praised the petitioner in general terms, stating for instance that he 
"has a proven track record for progressive development as a distinguished expert in Aerospace 
Engineering including Korean fighter aircrafts and its [sic] research and development." Dr. 
listed several titles that the petitioner has held and recognition that the petitioner has 
received, and praised the petitioner's "distinguished contributions and accomplishments," but did not 
identify or describe those accomplishments. 
Other letters included more details, but did not indicate that the petitioner continues to engage in 
aerospace engineering research. Rather, their discussion of the petitioner's recent work focus ed on 
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procurement. Dr. professor at , was the 
petitioner's academic advisor during the petitioner's graduate studies at that institution. He stated: 
During his doctor's and master's courses, [the petitioner] published numerous papers 
in helicopter design ... . 
Through his significant research and study of rotorcraft design and other aircraft 
work, he published his doctoral thesis, " 
'. " In this study, he introduced the optimal 
design method, which went beyond the previous concept of design in its prediction of 
factors such as : by 
applying the integrated product and process development ... concept to take into 
consideration the various suggestions of pilots in the early design phases. Based on 
previous understandings of helicopter design, the flying quality felt by pilots was the 
result of the design and thus was a difficult factor to manage in the design stage. 
However, [the petitioner's] paper made a contribution to the process by making such 
factors something that can be controlled in advance. 
Concerning the petitioner's more recent work, Dr. stated: 
[The petitioner] is heavily involved in an ongoing South Korean project focused on 
.. . Korea possesses numerous 
export opportunities for U. S. defense corporations. 
If [the petitioner] has the opportunity to work in the U. S. [for] the next tw o years 
while the negotiations are in progress, the U. S. will be able to better understand the 
purchasing system and the related requirements for such South Korean projects. 
Dr. did not explain why the petitioner's two-year negotiation period would merit perm an ent 
immigration benefits. 
Dr. , professor at the , stated that 
the petitioner, in his doctoral studies, "developed a new and revolutionary approach to integrate 
into a generic conceptual design using an Integrated Product/ 
Process Development methodology. " Dr. stated that the petitioner subsequently "was a key 
figure in establishing Korea's national plan for the systematic development of the aerospace 
industry .. .. (The petitioner] is an engineer and policy maker. There are not many p eople who could 
play both roles. " 
a partner at , stated that he has sought the petitioner's technical advice in 
litigation involving helicopter crashes and other engineering-related matters. Mr. then described 
the petitioner's more recent procurement work, and stated: "I strongly believe that in a changing 
environment where [the] Korean government is becoming more receptive to the weapons and 
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technologies possessed by other countries, [the petitioner] is the person who can best strengthen the 
cooperation between Korea and the U.S." 
_ , president of the , described the 
petitioner's involvement in various procurement programs for the South Korean government, stating, 
for example: 
When we met in 2005, [the petitioner] was serving as an advisor to the P resident for 
national policy matters related to the procurement of foreign weapon systems and 
domestic R&D. At the time, Korea was in the process of conducting large 
procurement projects such as the the 
and the 
project. [The petitioner] was responsible for determining 
each program's feasibility, potential problems, and the overall direction .... 
[The petitioner] is currently acting as the international cooperation and external 
relations manager for the 
which is being jointly carried out by the Korean and the Indonesian governments .... 
[The petitioner] is successfully leading his team members in this project, and the 
even formally recognized and awarded 
him for his achievements and contributions. 
Currently, Korea is carrying out various large-scale defense programs in which U.S. 
corporations ... are strongly willing to participate. The Korean government created a 
special task force of experts, [of] which [the petitioner] is a member, to ensure the 
success of these programs. As a result, [the petitioner] ... will be able to facilitate 
the participation of U.S. corporations in various defense projects held by the Korean 
government, bringing numerous profitable opportunities to the U.S. 
The petitioner submitted materials showing that he received awards from the 
The award which appears to be the most significant is a "Presidential Citat ion " which 
he received for "[c]ontribut[ing] to the development of the aviation industry through hosting major 
national defense technology business and policy consulting and technical reviewing of private 
enterprises. " Background materials indicate that no more than 20 people receive the Presiden tial 
Citation in a given year; the petitioner was one of 18 recipients in 
The petitioner's Presidential Citation was the subject of an article in The 
same publication subsequently issued an article about aircraft development efforts, which included a 
quotation from the petitioner. The petitioner was also the subject of a profile in the . 1 n 
. when he completed his doctoral thesis. 
The petitioner submitted copies of the thesis and other articles and conference papers he has written. 
The petitioner did not claim or establish that any of his work was published outside of Korea after he 
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completed his graduate studies in the 1990s. The petitioner claimed only one article published after 
, specifically " 
- ," in the . 
. The� article did not report research in aerospace engineering, but rather "reviewed the 
importance and meaning of international joint development by briefly introducing the history and 
current status of the cooperation between " 
The introductory statement submitted with the petition discussed the importance of citations in the 
context of establishing the reputation of a journal where one of the petitioner's articles appeared, but 
the petitioner did not make any claims about the citation of his own published work. Evidence about 
the reputation of a given journal does not mean that the petitioner's work has a comparable 
reputation by virtue of appearing in that journal. 
The director issued a request for evidence on September 24, 2013. The director stated that the 
petitioner made inconsistent statements regarding the field in which he intends to work in the future, 
calling himself a "researcher" while submitting a business plan indicating that the petitioner, 
according to the director, "intends ... to engage in a consulting business to be named the 
r." The director stated: "While the [petitioner's] educational 
credentials are in the field of aerospace engineering, the work of the [petitioner], both currently and 
as proposed for the United States, relates to the field of government policy making and procurement 
relative to the aeronautical and defense industry." The director also stated that the peti tio n er had not 
met the three-pronged test set forth in NYSDOT. 
In response, the petitioner submitted copies of previously submitted materials, as well as a new letter 
and a revised business plan. An accompanying statement reads, in part: 
As [the petitioner] plans to provide "a one-stop service" with distinguished experts 
from the fields of technology, policy, contract, negotiation and other legal areas, the 
U.S. companies can benefit from more cost-effective and time-saving consulting 
service. 
Since the additional business of [the petitioner's] research center is also to provide 
consulting service based on his research findings, he can carry out his plans to work 
both as a researcher and business consultant by establishing a research center named 
the ... in the United States .. .. 
[The petitioner] has been a leading researcher in this field of aerospace engineering as 
one of the pioneers in these studies. . . . Moreover, his expertise has led him to 
publish and present numerous academic articles and participate in various national 
projects, which have led him to make great contributions to development of the 
military technology and national defense in Korea .... 
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(The petitioner] has definitely secured a nationwide standing as a seminal figure in 
the field of aerospace and defense as an expert aerospace engineer as well as a 
researcher. 
The petitioner has not established that he "has been a leading researcher" or a "pioneer" of aerospace 
engineering. Going on record without supporting documentary evidence is not suffic ient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, while the petitioner has held important positions in South Korea's defense community, 
the petitioner has not established how his "contributions to development of the military technology 
and national defense in Korea" benefit the national interest of the United States. The petitioner has 
not shown that he has developed military technology that the United States does not possess. Rather, 
his business plan reflects an intention to sell United States technology to South Korea. The 
petitioner has claimed that his doctoral thesis introduced new concepts into the design of helicopters, 
but the record does not show that any manufacturer of helicopters has adopted those concepts. 
The petitioner's revised statement, now entitled "Personal Expertise and Future Research & 
Business Plan," reads, in part: 
The ultimate purpose of my research is not only limited to academic theoretical study 
in the field of aerospace engineering, I would like to expand my study to contribute to 
the military and the society economically and practically. Thus, in [the] long term, I 
plan that my research will provide techniques and ad vices which proper [s ic] to the 
professional development. ... On the basis of the short term research activities, J 
would like to carry out business providing advanced techniques and consultation to 
the companies in the U.S .... 
The major strength of my research is to integrate the specific requirement of an 
aircraft into a generic conceptual design using an Integrated Product/Process 
Development methodology. This research was accomplished by using a unique 
approach to conceptual and early preliminary aircraft design .... This kind of process 
and information are very evolutionary for the concept of traditiomil design .... 
Based on (my] experience, I will be able to research the future-promising 
convergence technology and train talented people that are needed in the United 
States. Researching in such field of study at a university or an institute, I would not 
only develop advanced and innovative products but also train professional manpower 
. . . lead[ing] to the development of the new technologies in the field of the national 
future industry .... 
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Therefore, as my short-term plan, I would like to conduct researches in the field of 
aerospace engineering and train the future experts. Based on my short term pla n , I 
will provide the proper output of research with my unique experience and 
professional knowledge by working as the research consultant. Therefore, my 
proposed employment is covering not only the researcher in the short-term but also 
the consultants in the long-term. 
Dr. professor at , stated that the petitiOner "is one of th e 
pioneering researchers in the field of aerospace engineering, who [is] nationally and internationally 
recognized [for] his significant contributions." Dr. made a general reference to the petitioner's 
published and presented work, and asserted that the petitioner's doctoral thesis "cou ld be actually 
applied to the optimal design of helicopters and also suggested [a] new and revolutionary approach." 
Dr. did not indicate that any manufacturers actually had used the petitioner's work in that way in 
the years following the paper's completion in The remainder of Dr. letter is, m 
essence, a description of previously submitted materials and the petitioner's employment history. 
Dr. stated: "I completed my Ph.D. degree in aeronautical and astronautical engineering" in 
but all of his subsequent claimed employment has been in mechanical engineering, dealing with such 
topics as "soldering and surface mount technology" and "electronics packaging," with no evident 
emphasis on aerospace engineering. 
The director denied the petition on April 28, 2014, stating that the petitioner had established that his 
intended work in the aerospace industry has intrinsic merit, and that the benefit from that '.vork will 
be national in scope, but that the petitioner had not met the third prong of the NYSDOT n ational 
interest test. The director stated: 
Based upon all the documentation provided, the petitioner has not demonstrated that 
he will present a significant benefit to the field of endeavor of aerospace research 
since [he] proposes to come to the United States to work in another field of endeavor 
- a weapons sales and procurement consultancy business . . . to be called the 
" " 
[E]ven considering that a minority one third of the proposed business may be said to 
be collaterally related to aerospace research, the petitioner/beneficiary, by his own 
self-admission, states that he will serve in a managerial (rather than a research) 
capacity . . .. 
[I] t plainly appears that the [petitioner] proposes to come to the United States to 
leverage his intimate knowledge of and connections with the South Korean military 
and government to establish a new military sales and procurement business. 
In an affidavit submitted on appeal, the petitioner states: 
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My unequivocal intent is to come to the U. S. and work in the field of aerospace 
engineering research .. .. [M]y initial plan overly emphasized a business venture, 
taking the focus away from how my credentials and qualifications will be used to 
benefit the national interest in the field of aerospace research . 
. . . (My discussion] of the was not meant as a description of the type of work I 
wish to engage in, but rather as a way of showing how my research work could 
provide broader benefits beyond the field of aerospace engineering. By no means is it 
my intent . . . to "leverage" my knowledge to establish a new military sales and 
procurement business. The description of the was unnecessary as my interest 
is not in establishing a sort of business venture . 
. . . [M]y research will enable the rapid integration of the military or international 
market's specific aircraft or satellite requirements into a general conceptual design . 
. . . To this end, I have enclosed my revised research proposal. 
The final sentence quoted above may refer to the petitioner's statement in response to the RFE; the 
appeal includes no "revised research proposal." 
A statement accompanying the petitioner's affidavit expands on the assertion that the petitioner's 
principal goal is not to establish his own business as such, but to establish a framework in which he 
will be able to conduct research, relinquishing managerial functions as the "research center" grows 
and accumulates personnel. 
The petitioner's descriptions of his intended activities in the United States have lacked detail, and 
have changed throughout the course of this proceeding. The initial emphasis was clearly on 
business, but shifted toward research as the proceeding progressed, apparently in response to 
concerns that the director expressed in the RFE and, later, in the denial notice. A petitioner may not 
make material changes to a petition that has already been filed in an effort to make an apparently 
deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 175 
(Comm'r 1998); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which require that 
beneficiaries seeking employment-based immigrant classification must possess the necessary 
qualifications as of the filing date of the visa petiti on. 
Furthermore, the petitioner has not established how his proposed consulting/research activ ities would 
bring new benefit to the United States. The record indicates that the South Korean military already 
purchases significant quantities of equipment from manufacturers in the United States. The petitioner 
has not shown that he has any experience operating a business like the proposed , and therefore 
assertions about its future impact are only conjecture. 
With respect to the petitioner's research work, the record contains no recent evidence to show that he 
continued to perform research for any substantial period after he completed his graduate studies , or lhat 
his research has ever had a significant impact on the aerospace industry. Without such evidence, there 
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is no basis to conclude that his future work as a researcher will stand out to an extent that warrants the 
national interest waiver (which is a special benefit beyond the underlying immigrant classific ation). 
The petitioner has had a distinguished career within the South Korean military, earning significant 
honors along the way. His stated plans for employment in the United States, however, have lacked both 
consistency and detail, and rest on unsupported assumptions about the future impact of his efforts both 
in business and in research. 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past histol)' of 
demonstrable achievement with some degree of influence on the field as a whole."). 
As is clear from the statute, it was not the intent of Congress that every person qualified to engage in a 
profession in the United States should be exempt from the requirement of a job offer based on national 
interest. Likewise, it does not appear to have been the intent of Congress to grant na tional interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the 
individual alien. On the basis of the evidence submitted, the petitioner has not established that a wai v er 
of the requirement of an approved labor certification will be in the national interest of the United Stales. 
The AAO will dismiss the appeal for the above stated reasons. 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. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the p eti tione r has not 
met that burden. 
ORDER: The appeal is dismissed.