dismissed EB-2 NIW Case: Astronomy Education

invasion of personal privacy 
PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
 Date: FEB 2 0 2008 
LIN 04 23 1 50552 
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. $ 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
I) 
7~obert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The director treated the petitioner's untimely appeal as a motion, and again denied the 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. The petitioner seeks employment as an "Astronomer 
(Educator/Researcher)." 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 an alien of exceptional ability, 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. 
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 sole issue raised by the director 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, 
10 1 st Cong., 1 st Sess., 1 1 (1989). 
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] believes it appropriate to leave the 
application of this test as flexible as possible, although clearly an alien seeking to meet the 
Page 3 
[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. 21 5 (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. 9 204.5(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. 
The Form 1-140 petition includes this job description: "Freelance acquisition and dissipation of Astronomy 
knowledge; get insights from audience interaction, discuss the possibilities, explore the probable, and 
communicate to a greater audience." In an addendum to the petition, the petitioner described his intended 
work in "astronomy education research" in greater detail: 
I will create opportunities to promote astronomy to librar[y] goers, museum visitors, school 
students, boy scouts, girl guides, various clubs, and [a] variety of associations and institutions 
as astronomy interests one and all; despite the information explosion on the Internet, a 
viewpoint of the universe that I present is unique, and comes from my on-going research and 
theories about the universe. This I have done and still do for fun, for self-education, and now 
INTEND TO ESTABLISH as a profession with passion, here in the United States. The 
presentations are content driven, interactive, engrossing, and sophisticated computer 
animated graphical audiovisuals with live narration. 
On Form ETA-750B, Statement of Qualifications, the petitioner indicated that he has worked since 2001 as a 
substitute teacher both at Sawanhaka Central High School District, Floral Park, New York (averaging 35 
hours per week), and at Cedar Rapids Community Schools, Cedar Rapids, Iowa (averaging 7 hours per week). 
The petitioner did not claim any specialized formal training in astronomy. Rather, he claimed on his web 
site,' without elaboration, to have "[llearnt Astronomy the ancient's way." The petitioner holds a bachelor's 
degree in physics education, and stated that he has earned "27 masters' credits out of 30 required for" a 
master's degree in physics and earth science education. (The petitioner eventually received his master's 
degree in spring 2006, nearly two years after he filed the petition.) The petitioner is licensed to teach physics, 
earth science, and general science to grades 7 through 12 in Iowa and New York. 
The petitioner asserted that he founded the Cosmic Academy on December 7, 1980, operating from India until 
July 1993 except for "six months [in 19961 doing research and education on Halley's comet and the 
opposition of planet Mars while in Australia, with the British Astronomy Association . . . and with the Sydney 
Observatory." In addition to printouts from the Cosmic Academy's web site, the petitioner submitted a copy 
of the inaugural issue of Cosmic Odyssey, described as a bimonthly publication for which the petitioner had 
served as editor and publisher. The only evidence of further issues of Cosmic Odyssey is a 1985 article in the 
Journal of the Barbados Astronomical Society, said to be reprinted from the second issue of Cosmic Odyssey. 
The petitioner's name, and/or the name of his Cosmic Academy appear in various clippings (mostly undated) 
from The Times of India. A number of these clippings are short promotional pieces, announcing upcoming 
Academy activities. Others quote the petitioner with regard to astronomical events such as lunar eclipses and 
comet sightings. 
The petitioner also submitted copies of various educational materials he had prepared, and documentation of 
his work teaching classes, advising school astronomy clubs, and making presentations at churches, libraries, 
and other venues. Other materials, such as an amateur radio license and a cardiac care provider card, have no 
discernible relevance to astronomy education. 
The petitioner submitted several letters with his initial submission. We will discuss examples of these letters 
here. One letter, from 1997, is from then-President Bill Clinton. The body of the letter reads, in full: 
Thank you so much for taking the time to share your thoughts. Your words of 
encouragement and support mean a great deal to me. 
As we continue our efforts to address the fundamental needs of the American people, my 
Administration remains committed to providing our children with a brighter future and 
empowering hardworking citizens with the tools they need to improve their lives. 
1 hope you will remain involved as we prepare our nation to face the challenges of the 
twenty-first century. 
' The petitioner has submitted printouts from http://www.cosrnicacademy.net/. 
Page 5 
The letter contains no specific mention of astronomy or the petitioner's work, and appears to be a generic 
"form" letter of the type routinely sent in reply to letters to the president. It is clear from the wording that the 
letter is a reply to an earlier letter from the petitioner, rather than a spontaneous message fiom the president. 
The remaining witnesses all have some demonstrable connection to astronomy. Like President Clinton's 
wrote to the petitioner: 
This is just a line to say that I was enormously impressed with what you told me during your 
visit, about your efforts to stimulate interest in astronomy amoung [sic] the school-going 
students in Gujarat and in neighbouring cities and villages. It is an effort that is most praise- 
worthy and indeed noble. I am personally encouraged that there are persons like you bearing 
social responsibility. 
I greatly hope that others in authority in India will be appreciative of your efforts in a 
concrete and in a substantial way. 
While the tone of 
 letter was clearly positive and encouraging, the letter does not show 
that the petitioner stands out among science educators. The AAO does not dispute the assertion that "efforts 
to stimulate interest in astronomy" are "praise-worthy," but the petitioner's choice of occupation does not, by 
itself, entitle him to a national interest waiver. 
Most of the remaining letters date fro 
 sist of comments regarding visits or presentations 
by the petitioner. These letters, like 
 s letter, are complimentary but general in nature, 
portraying the petitioner as an astronomy enthusiast who was eager to learn and to share his knowledge. As 
stated b- of St. Michael, Barbados, the petitioner is "an avid student of astronomy, as well as 
an enterprising person." 
Only one of the initial letters discusses the petitioner's work in any depth. ~irector and 
CEO of the New York Hall of Science, stated: 
My support for a waiver of the job offer requirement is based on my knowledge of the need 
in the US for science education entrepreneurs like [the petitioner]. There are large numbers 
of jobs available for certified science teachers, like [the petitioner], and he would have no 
trouble obtaining such a job, as he has demonstrated during his decade in this country. But 
we also have a crying need for entrepreneurial communicatols, and they are rare. . . . [The 
petitioner] has demonstrated that he can fully support hyself, and help meet ongoing but 
constantly changing US needs, by serving as a flexible science communicator in a variety of 
settings. 
A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute 
grounds for a national interest waiver. Given that the labor certification process was designed to address the 
issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a 
labor certification. Matter of New York State Dept. of Transportation at 2 15,2 18. 
I met [the petitioner] twenty-two years ago in India. On behalf of the Indo-US 
Subcommission on Education and Culture, I was taking US-made science education 
equipment around and showing Indian educators how to use it. [The petitioner] was assigned 
to assist me and act as a translator. He did far more than that. He was soon operating the 
equipment (a Starlab portable planetarium) entirely on his own. He gave programs for 
literally thousands of children and adults. After my return to the US I received reports from 
Indian educators on the exceptional impact of [the petitioner's] presentations. Based on the 
success of the experience, the National Council of Science Museums in India obtained a 
license from the US company and manufactured one hundred of these planetariums for use 
throughout India. 
. . . His deep, over two decade-long enhancement of his own education and that of Indian and 
American children he has worked with represents an achievement and demonstrated 
commitment far beyond the norm for US students or teachers, despite their often great 
advantages in environment and opportunity. . . . 
He has written several popular articles on sky events for the lay person mostly in India, and 
has designed and conducted thousands of school level astronomy slide and telescope 
presentations. . . . His writings and course materials are accurate, charming, and enthusiastic. 
This entrepreneurial spirit is not common among science teachers. [The petitioner] continues 
to discover specific needs for science education and create his own opportunities to meet 
those needs. Requiring him to be committed to a single employer would reduce his value for 
the US in meeting the constantly evolving national priorities we have for improving the 
public's understanding of astronomy and space sciences. 
It is not clear to what extent 
 would be aware of the petitioner's work if the petitioner had not, at 
the age of 18, been asked to assist in his demonstrations. 
The petitioner's initial submission certainly portrays the petitioner as an active and avid popularizer of 
science in general and astronomy in particular. The initial submission does not, however, demonstrate that 
the petitioner has made specific, lasting contributions that set him apart from others in his field. Inspiring the 
enthusiasm of one's audience is the hallmark of a good educator, but success in one's field is not the threshold 
for the national interest waiver. 
On May 27, 2005, the director issued a request for evidence, instructing the petitioner to demonstrate his 
impact on his field overall. In response, the petitioner asserted that because he has no employer, he would not 
be displacing any United States workers, and labor certification would be not only "irrelevant" but 
impossible. The petitioner also asserted that labor certification is intended for the "minimally qualified 
individual . . . whose sole intention is to make a living" and therefore lacks "zeal and passion." The petitioner 
also stated that, in an age of increasing reliance on computers, his "'back to nature' trend is an important and 
age-old commonsense industry standard that helps the audience have a holistic picture of the Universe we all 
live in." In terms of his impact on the field of astronomy, or astronomy education, the petitioner stated: "if 
the past is an indic[a]tion of the future to come, 1 have received standing ovation, and sustained applause, for 
my exceptional abilities." 
The petitioner concluded by stating that he is "not a hardcore researcher," but rather "a one man institution" 
who operates at a "grassroots" level "that captivates hundreds of school going children." 
The petitioner submitted documentation, much of it promotional in nature, about his activities. The petitioner 
also submitted additional witness letters. Among the most prominent of these new witnesses is astrophysicist 
- & - 
, Director of the Hayden Planetarium at the American Museum of Natural History in 
My knowledge of [the petitioner's] skills as an astronomy educator flow not from any 
personal relationship with him - indeed, 1 have never met the man - but from his reputation 
on the web and from the countless students and educators that have been influenced by his 
work. When one has a reputation for innovation, and the enthusiasm to deliver it, one's 
profile and pedigree spread rapidly, as is [the] case with [the petitioner]. . . . 
Turns out, there is no shortage of science educators in America. But if you have ever spent 
time in their company you will see immediately that they, as a community, lack the singular 
enthusiasm that [the petitioner] expresses daily. . . . [W]e should be finding means to expand 
[the petitioner's] influence, and not limit it, or reduce it. 
The petitioner's enthusiasm is a recurring theme in this group of letters. 
 of the 
University of California, Santa Barbara, stated that the petitioner "is ve 
 assionate about science education" 
and "will encourage more young people to pursue scientific careers." 
 'YP , Director of Projects for The Planetary Society, stated that he "was struck by [the petitioner's] drive and passion for what he is 
doing." When the witnesses identify sources for their assertions, those sources are materials and figures 
provided by the petitioner himself. 
The director denied the petition on November 1, 2005, stating that the petitioner had failed to establish that 
his work is of substantial intrinsic merit or national scope, and that the letters submitted by the petitioner "do 
not establish that his work is known and considered especially unique outside his immediate circle of 
colleagues." The petitioner did not file an appeal within the thirty-day deadline established by 8 C.F.R. 
5 103.3(a)(2)(i). 
 The petitioner appealed the decision on March 3, 2006. 
 The director considered the 
untimely appeal as a motion, pursuant to 8 C.F.R. 5 103.3(a)(2)(v)(B)(2), and reaffirmed the denial of the 
petition on September 14,2006. The petitioner filed a timely appeal of this second decision. 
On appeal, the petitioner protests the director's use of "'canned' language" that applied poorly, or not at all, to 
specific aspects of the proceeding. The AAO concurs that portions of the director's decision were 
insufficiently specific, or even outright inaccurate. This error sometimes worked against the petitioner, but 
also worked in his favor (an issue we shall revisit later in this decision). 
The petitioner requests oral argument on appeal. The regulations provide that the requesting party must 
explain in writing why oral argument is necessary. Furthermore, Citizenship and Immigration Services has 
the sole authority to grant or deny a request for oral argument and will grant argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. 5 103.3(b). In 
this instance, the petitioner identified no unique factors or issues of law to be resolved. In fact, the petitioner 
set forth no specific reasons why oral argument should be held. Moreover, the written record of proceedings 
fully represents the facts and issues in this matter. Consequently, the request for oral argument is denied. 
The petitioner asserts that he is an educator, not a researcher (although he described himself as both on his 
Form 1-140 petition), and that science education possesses substantial intrinsic merit. We agree with this 
assertion and withdraw the director's finding to the contrary. 
The director, in denying the petition, stated: "It appears that the alien petitioner is currently working as an 
Adjunct Professor of Astronomy at the City University of New York [CUNY]. It does not appear that he will 
be providing services to individuals outside the immediate geographic area." The director therefore 
concluded that the petitioner's activities lack national scope. 
On appeal, the petitioner states that, although he was twice offered the adjunct professorship, he had to 
decline the offers "due to a lack of time to petition for an H-1B" nonimmigrant visa. The petitioner states: "I 
have never worked for the City University of New York as an adjunct professor" (emphasis in original). The 
petitioner states that he merely mentioned this job offer as evidence of his claimed exceptional ability 
(because a university offered him a teaching position even though he had only a bachelor's degree at the 
time). With this claim in mind, we turn to the petitioner's prior evidentiary submissions. The petitioner's 
response to the request for evidence included a June 28, 2005 letter from 
 Astronomy 
Coordinator for the College of Staten Island (a subdivision of CUNY), which stated, in part: "Hope you have 
a nice summer your current assignment for the Fall follows. . . . You have been assigned the following 
program for the upcoming term." The wording of the letter does not suggest a job offer; rather, it seems more 
consistent with an assignment letter for someone already working at CUNY. If the petitioner had not yet 
accepted the position, it is not clear why the college would have gone so far as to assign him specific courses 
for the coming semester. (It is possible that the petitioner had provisionally accepted the offer but then had to 
decline, owing to his visa situation, but this is only speculation, and the record sheds no light on the matter.) 
We acknowledge that, on an exhibit list that accompanied this letter, the petitioner described the letter as a 
"College of Staten Island job offer, they do not sponsor Green Cards for Adjunct Professorship." 
Nevertheless, an approved H-IB petition allows an alien to work in the United States on a temporary basis. It 
is not a "green card." 
On the same exhibit list, the petitioner listed his "Updated Resume." 
 Under "Work Experience," the 
petitioner wrote: "Astronomy Adjunct Professor, City University of New York, College of Staten Island, 
2005-Present." If the petitioner never worked at CUNY, as he asserts on appeal, then it is problematic that he 
included this nonexistent work as "Work Experience" on his resume. The petitioner's contradictory claims in 
this matter illustrate our reluctance to accept the petitioner's own unsubstantiated claims regarding the nature 
and extent of his past and present activities. Doubt cast on any aspect of the petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. 
Id. at 582,591-92. 
Apart from contradicting his own previously submitted rksume, the petitioner asserts that his work has 
national scope because he has "written . . . for the popular national periodicals" and he can reach a national 
audience via the Internet. The petitioner also states that he is "in the process,of writing a book," something 
not previously mentioned in the record. 
Virtually anyone can establish an Internet presence by setting up a web site, a web log, or a page on a social 
networking site. This does not mean that the content of such pages or sites actually reaches a national 
audience. By way of analogy, practically anyone with a telephone can reach almost anyone else with a 
telephone, but this does not give a telephone user national scope in any meaningful sense. The petitioner has 
operated his web site for several years, but he has provided no hard information regarding the frequency of 
"hits" or any geographic distribution of the sources thereof. The petitioner has not established any 
publication record in the United States. With respect to his presentations, the petitioner asserts that he could 
travel widely and perform such presentations throughout the United States, but there is little indication that he 
has heretofore done so beyond the vicinities of his various residences in the United States. It is unclear how 
the petitioner's commitments to his Hl-B employers would affect his mobility. Indeed, on appeal, the 
petitioner asserts that approval of the petition would grant him "the freedom to approach various groups in 
several states," thereby implying that he has not yet had such opportunities. 
Taking the above into account, the best that we can conclude is that the petitioner's work may, at some point, 
take on national scope provided some conditions are met at some time in the future. We must, however, 
consider the conditions in place at the time of filing, rather than anticipated future conditions. The 
beneficiary of an immigrant visa petition must be eligible at the time of filing; a petition cannot be approved 
at a future date after the beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 
I&N Dec. 45,49 (Regl. Commr. 1971). 
We now turn to the issue of whether or not the petitioner, as an individual, merits a waiver of the job 
offerllabor certification requirement. With regard to witness letters, the petitioner asserts that the director 
erroneously attributed previously submitted letters to "colleagues or co-workers." The AAO agrees with this 
assessment. The letters 
 to the request for evidence were not from individuals who have 
worked with the petitioner, and 
 pecifically stated that he had never met the petitioner. 
New letters accompany the appeal. 
 of the University of Florida states: "Highly learned 
individuals such as [the petitioner] are but few, especially when it comes to nurturing educational research 
efforts such as those by the Cosmic Academy." A professor of Civil and Coastal Engineering, 
claims no professional credentials in astronomy, but states: "I was introduced to [the petitioner] 
and his academy years ago by my father, a chemical engineer from MIT and an astronomy enthusiast in 
India." 
Senior Project Director of Public Understanding of Science and Technology at the American 
Association for the Advancement of Science, states: 
Teachers that have both a detailed knowledge of the scientific field and clear, creative ways 
of communicating that knowledge are rarities and treasures that the country can not afford to 
discard. . . . I have confidence that [the petitioner's] actions in both the formal and informal 
education fields have impacted and will continue to impact American students in [a] manner 
which is national in scope 
It is not clear how much of knowledge of the petitioner's work is first-hand, as opposed to 
information provided by the petitioner himself when he requested her assistance. She states that the petitioner 
"worked in India as part of the Indo-US Subcommission on  ducati ion and Culture," phrasing which implies 
that he was a 
 mmission, when in fact the etitioner was 18 years old with no high school 
diploma, acting as 
 assistant and translator. 
 letter appears to be based on the need 
for knowledgeable and creative teachers in general, rather than the particular achievements of this petitioner. 
A number of the petitioner's prior witnesses offer new letters. 
 Some of these letters are fairly brief, 
containing little more than requests for reconsideration of the denial and assertions that workers are scarce in 
- 
the petitioner's field and that'the petitioner will not displace any United States workers. 
 in his 
second letter, repeats the assertion that the United States is not doing all it can to promote scientific literacy, 
and that the petitioner benefits the United States with an "approach and style to the subject [that] is lucid and 
welcoming to students and lay people alike." 
The new letters, like those submitted previously, appear to focus on the issue of science education rather than 
on the petitioner specifically, and the letters discuss what someone with the petitioner's skills and dedication 
might, in the abstract, accomplish, rather than offer specific details of what the petitioner has in fact 
accomplished in his first seven years in the United States. 
The AAO does not in any way wish to downplay the vital importance of high-quality science education, 
which continues to grow in significance as science and technology reach ever deeper into the fabric of 
American life. Also, the AAO does not dispute the broad appeal of astronomy, through which many in the 
United States and the world are introduced to the sciences by which we learn about the world around us and 
worlds beyond, improving and enriching our lives. 
At issue in this case is not the intrinsic merit of science education, or the cumulative national scope of the 
combined efforts of science educators, ranging from classroom instructors to mass-market popularizers of 
Page 11 
science such as 
 or the late 
 At issue is the extent to which the petitioner, as an 
individual, has influenced and is likely to influence the course and quality of science education in the United 
States. In this respect, the petitioner's evidence comes up wanting. 
The petitioner's enthusiasm and passion for his chosen subject are unquestioned, and his self-education in 
astronomy appears to far exceed his comparatively minimal formal academic training in the subject. Where 
the petitioner falls short is in demonstrating his impact on science education. The petitioner refers to the 
national problem of declining science education, and asserts that he merits a waiver because he can help to 
reverse this trend. Without exploring the extent to which one person can affect this national trend through a 
series of small-scale public presentations, the AAO notes that the petitioner has been in the United States 
since 1999, and the petitioner submits no evidence that his presence thus far has stemmed the decline in 
science education that he seeks to remedy. 
The petitioner, on appeal, repeats the assertion that he "will be working independently" and "will therefore, 
not displace a US worker" (emphasis in original) and labor certification is inapplicable. It may be the case 
that there are no United States workers doing precisely what the petitioner is doing with respect to 
astronomical presentations, but the record contains no first-hand documentary evidence that such activities 
have been sufficient for the petitioner to support himself. (The petitioner claimed that the Cosmic Academy 
is "financially self-supporting," but this claim appears on the same rCsume on which he claimed "Work 
Experience" at CUNY even though he now states he never worked there.) Rather, the petitioner has worked 
for several public schools as a substitute teacher. Such work is neither independent nor self-employment, and 
falls well within the scope of labor certification. 
The petitioner seeks an employment-based immigrant classification, to which the national interest waiver 
attaches. It appears, from the available evidence, that he seeks a waiver based not on his occupation (i.e., 
substitute teacher) but on an activity which he pursues, albeit passionately, as a sideline, an auxiliary activity. 
The petitioner himself refers to his "primary task of working for [his] H-1B employer and F-1 school" 
(emphasis added). 
The record amply demonstrates that, while the petitioner may prefer to spend all of his time performing public 
presentations, he is also willing to teach science in a classroom environment, an avenue amenable to labor 
certification, through which immigrant classification would be available without the additional burden of 
establishing eligibility for a national interest waiver. 
For the reasons discussed above, the AAO affirms the director's finding that 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. This finding would, by itself, suffice to compel the AAO to dismiss the appeal. Review of the record, 
however, reveals additional disqualifying grounds, beyond the decision of the director. The AAO maintains 
plenary power to review each appeal on a de novo basis. 5 U.S.C. 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, 
1 149 (9th Cir. 199 1). The AAO's de novo authority has been long recognized by the federal courts. See, e-g., 
Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
Page 12 
The director, in focusing on the national interest waiver, did not address the issue of the petitioner's eligibility 
for the underlying immigrant classification in any detail. The director simply stated: "The Service accepts 
that an advanced degree or exceptional ability is required by the occupation, and that the petitioner holds the 
requisite advanced degree or exceptional ability as required under Service law." The record does not support 
this generic finding. 
The petitioner did not claim, at the time of filing, to be a member of the professions holding an advanced 
degree. 8 C.F.R. 5 204.5(k)(2) defines a "profession" as one of the occupations listed in section 101(a)(32) of 
the Act (the petitioner's occupation is not listed there), 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. 
Schoolteachers are listed in section lOl(a)(32) of the Act, but the petitioner did not predicate his petition on 
his work as a school teacher. We cannot call him a member of the professions based on his work in schools, 
and then consider his waiver request based on his work outside of schools. 
The petitioner asserted that he began doing astronomy presentations in the early 1980s, many years before he 
earned his G.E.D. high school equivalency in 1993, so clearly no degree was required for him to begin that 
work. The petitioner summed it up by stating "there are NO MINIMUM QUALIFICATIONS for my kind of 
work" (emphasis in original). The petitioner has, thus, effectively stipulated that his independent educational 
work falls outside the regulatory definition of a profession. 
The petitioner claimed only to be an alien of exceptional ability. Between the statutory categories of the arts, 
business, and the sciences, the petitioner's work appears to fit best within the sciences. The regulation at 
8 C.F.R. 5 204.5(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. 
5 204.5(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. 
There is some difficulty in arriving at a determination in this regard, because it is not clear that freelance 
astronomy education is well-established as an occupation or field in its own right, and therefore there is not 
much of a basis for comparison between the petitioner and other freelance astronomy educators. (If the 
petitioner is the only freelance astronomy educator, then he literally embodies the average and therefore, by 
definition, he cannot be exceptional.) If, on the other hand, we consider the petitioner broadly as a "science 
educator" or "astronomy educator," he falls well short of exceptional, because the broad category of "science 
educators" includes university professors holding doctorates, in addition to well-known figures such as Dr. 
ho, apart from having hosted his own television program, runs a planetarium that attracts visitors 
from around the world. 
An oficial academic record showing that the alien has a degree, diploma, certzjicate, or 
similar award from a college, university, school, or other institution of learning relating to 
the area of exceptional ability. 
The petitioner possesses a degree in science education. Because the petitioner was performing similar work 
before he earned this degree, the degree is clearly not necessary for the position. Therefore, the degree 
appears to represent a qualification above what is necessary for the petitioner's freelance work. 
Evidence in the form of letter(s) from 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. 
The petitioner submitted a letter from the Cosmic Academy, stating that the petitioner "has worked 
continuously for his brainchild, the Cosmic Academy" from December 7, 1980 through July 7, 1993 in India 
and (for six months in 1986) Australia. Considering that the petitioner himself not only founded the Cosmic 
Academy, but also signed the letter, the letter cannot constitute independent evidence of qualifying 
experience. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). 
Furthermore, the regulations require letters from "employers," regarding experience in an "occupation." 
Therefore, the petitioner must not merely demonstrate ten or more years of interest in astronomy education; 
he must establish ten years or more of full-time remunerative employment. The petitioner was 17 years old 
when he founded the Cosmic Academy. He asserted that he accumulated "12 years and 7 months" "paid 
service as a free-lance astronomy educator and researcher," but the record contains no documentary support 
for this claim. The petitioner provided only one monetary figure, claiming that he earned 75,000 rupees 
during the 1992-1993 school year. The record does not document such payment, nor does it establish what 
services the petitioner performed in exchange for it. 
The petitioner has not submitted sufficient documentary evidence to support a finding that he has at least ten 
years of full-time experience in the occupation for which he now seeks classification. 
A license to practice the profession or certlJication for a particular profession or occupation. 
The petitioner cited his certification as a science teacher in New York and Iowa. Such certification is clearly 
not necessary in the petitioner's freelance work, as his work predates his certification. At the same time, this 
certification is not specific to astronomy, nor does it appear to require particular expertise in astronomy. 
Therefore, we cannot conclude that the petitioner's teaching certificates demonstrate a degree of expertise 
significantly above what is normally encountered among freelance astronomy educators. 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. 
As we have already noted, the petitioner has not submitted any documentary evidence of his earnings as a 
freelance astronomy educator. Furthermore, the petitioner has not established the typical salary or 
remuneration for a freelance astronomy educator, so even if the petitioner had documented his own 
compensation, there is no baseline to permit a meaningful comparison. The petitioner has not satisfied this 
criterion. 
Evidence of membership in professional associations. 
The petitioner claimed membership in the Planetary Society and the International Dark Sky association, but 
he did not submit the required evidence of such membership. Rather, he stated that the evidence "will be 
forwarded at a later date." Furthermore, the petitioner did not establish the membership requirements of the 
named organizations. If membership is open to anyone who pays a membership fee or subscription, then 
there is nothing "exceptional" about such a membership, no matter how prestigious the organization. 
Subsequently, in response to the request for evidence, the petitioner stated that the memberships mentioned 
above "are available for purchase to the general public." The petitioner also stated that he had been "accepted 
as an Associate Member of the prestigious American Astronomical Society" and was "eligible for a 
membership [in] the International Astronomical Union." The petitioner did not indicate that he already held 
these memberships; he simply claimed eligibility. A claim of eligibility is not "evidence of membership," 
which is what the regulatory language demands. 
Evidence of recognition for achievements and signzficant contributions to the industry orjield 
by peers, governmental entities, or professional or business organizations. 
Under this criterion, the petitioner cited the witness letters discussed 
 As already discussed, 
most of the letters are very general in nature, with the exception of 
 s letter which was written 
specifically to support the petition. The record contains no 
 recognition of the 
petitioner for specific achievements or significant contributions to astronomy education. 
The above discussion supports the AAO's finding, beyond the director's decision, that the petitioner has not 
established that, as of the petition's filing date, he qualified for classification either as a member of the 
professions holding an advanced degree nor as an alien of exceptional ability. The AAO will dismiss the 
appeal for the above 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 filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.