dismissed EB-2 NIW Case: Aviation Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: fEB \ 7 20\2 OFFICE: NEBRASKA SERVICE CENTER 
INRE: 
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 
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. § I 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~1>~ 
~rryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as a member of the . . an advanced The 
petitioner seeks employment as an aviation manager 
Missouri. The petitioner asserts that an exemption from the requirement of a j 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 brief from counsel and supporting exhibits. 
In this decision, the term "prior counsel" shall refer to who represented the petitioner at 
the time the petitioner filed the petition. The term "counsel" shall refer to the present attorney of record. 
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. 
Page 3 
... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (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 U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application ofthis test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptiona1."] 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 a/New York State Dept. a/Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), set forth several factors to consider when evaluating a request for a national interest waiver. The 
petitioner must first show that the alien seeks employment in an area of substantial intrinsic merit. 
Next, the petitioner must show that the proposed benefit will be national in scope. Finally, the 
petitioner must establish that the alien will serve the national interest to a substantially greater degree 
than would an available United States worker having the same minimum qualifications. 
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. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
The AAO also notes that 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; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member of the professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on August 6, 2010. On that form, the petitioner stated 
that she is "[r]esponsible for safety, security, facilities management and operations at Kansas City 
International Airport." More details about the occupation appear in the official "Job Class 
Specification" from the City of Kansas City, the "Summary" portion of which reads, in part: 
Work involves the responsibility for the efficient and economical completion of 
assigned responsibilities in any area of airport operations and maintenance and 
department management such as, physical plant, transport systems, planning, 
development, operations or maintenance. 
Page 4 
The job description lists 15 "Duties and Responsibilities," the first of which reads: "Manages 
assigned program(s), project(s) and personnel; prepares work schedules, determines work methods 
and equipment required, and assigns staff to work crews." Most of the specified duties concerned 
logistical functions such as maintenance, construction, and personnel. The sixth, seventh, eleventh 
and twelfth duties and responsibilities concerned safety, as follows: 
./ Assumes responsibility for airport safety programs and ensures that runways, 
taxiways and field conditions permit safe operation of aircraft and motor 
vehicles, and coordinates activities with crash-rescue staff. 
./ Assumes operational control of airport during emergencies and coordinates all 
necessary activities and agencies to eliminate emergency situations and return 
airport to normal operations .... 
./ Supervises airport safety activities, runway lights and signals and motor 
equipment operating on the field; ensures that landing strips, adjacent grounds 
and field conditions are satisfactory for the safe operation of aircraft, mobile 
vehicles and the traveling pUblic . 
./ Supervises the inspection of airfield and airfield facilities for the presence of 
any hazardous conditions and takes required corrective action. 
In an accompanying introductory statement, prior counsel stated: "One of [the petitioner's] major 
responsibilities as Aviation Manager is the Airport's Emergency Plan and as the enforcer of the plan, 
[the petitioner] is exposed to sensitive information pertaining to public safety and expected to take 
appropriate action." Assertions about the inherent nature of the position can establish the intrinsic 
merit and national scope of the occupation, but there exists no blanket waiver for aviation managers. 
Therefore, the petitioner must establish that her past accomplishments set her apart from others in 
the occupation and demonstrate some degree of influence over the field. To meet this threshold, 
prior counsel stated: 
[The petitioner] is one of the few Aviation Managers in the country at [her] level of 
education, knowledge and experience. 
She is one of the very few who have a masters degree in aviation management ... , 
and also one of the few with certification from Dynatest regarding friction testing 
certification .... 
The position of Aviation Manager is extremely difficult to fill with people at the level 
of [the petitioner]. ... 
Undoubtedly, [the petitioner's] work is important. However, it is the true level of her 
abilities and credentials which set her apart. 
(Evidentiary citation omitted). Several witness letters accompanied the initial filing. Many of these 
witness letters focused on the intrinsic importance of the role of aviation managers. For example, 
the petitioner's supervisor, manager of operations at. stated: 
Page 5 
The position of Aviation Manager is a position of extreme responsibility .... The 
safety of the flying public and all airport users is directly dependent on upon the 
Aviation Manager making sound decisions in [emergency] situations .... 
It is extremely difficult to find people that have the education and key experience 
needed to make them successful in this job, as few have the required education or 
training to perform. 
Such general assertions do not distinguish the petitioner from other qualified aviation managers in 
any quantifiable way. More important for the purposes of this proceeding are statements that set the 
petitioner apart from other qualified professionals in her field. 
stated: 
[The petitioner's] unique performance, abilities and education set her apart from 
others in her field. For example, [the petitioner] has distinguished herself, by keeping 
abreast with industry trends and being a member of the prestigious American 
Association of Airport Executives (AAAE) organization, where she is a candidate in 
its accreditation program, with two (2) phases remaining to attain accreditation. She 
has attended both the Basic and Advanced training in Airport Safety and Operations 
Specialist School offered by the (AAAE). She also serves on three committees for 
this organization: The Transportation Security Services, General Aviation and The 
Operations Safety and Planning committees. 
I met [the petitioner] in January of 2010 when I went to Kansas City International 
Airport to deliver the Dynatest 6875 Runway Friction Tester (RFT) .... 
During my interactions with [the petitioner], it was clear that she was already highly 
knowledgeable and familiar with friction testing devices and the conditions for 
testing .... As an Aviation Manager, this is one of her specific duties - to conduct 
runway coefficient of friction testing for safe aircraft takeoffs and landings, during 
inclement weather operations, and for performing rubber build up assessment at 
Kansas City International airport. At a major international airport, it is extremely 
important for the safety of the travelers to have highly knowledgeable individuals like 
[the petitioner] performing such testing, otherwise, the technical outcome of the 
measurements may be compromised and affect the safety of aircraft. 
The petitioner submitted documentation of the petitioner's education and training and various other 
background materials. News stories reported emergency landings at ilion consecutive days in 
June 2010. Prior counsel claimed that the petitioner, "in her role of Aviation Manager, handled the 
Page 6 
safety and security aspects of these operations." The articles do not mention the petitioner or specify 
what role she played in the aftermath of the incidents. One article included a photograph showing 
several people near one of the aircraft, and a handwritten note indicates that the petitioner is one of 
those individuals, but no one is identifiable in the image. None of the witnesses (including _ 
officials) mentioned the incidents or the petitioner's role therein; most of the letters date from late 
April or early May 2010, before the incidents occurred. 
On September 28,2010, the director issued a request for evidence (RFE), stating: 
While the record does demonstrate that the alien petitioner is an accomplished 
Aviation Manager, the documentation is not sufficient to demonstrate that her 
abilities are greater in some capacity [than those of] the majority of her peers. 
In addition, the record indicates that managers of this sort are in "short supply." 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. 
In response to the RFE, the petitioner submitted two additional witness letters. 
senior program officer with the Airport Cooperative Research Program of the 
Research Board (TRB), stated: 
a 
TransportatIOn 
I am responsible for putting together industry expert panels that scope and oversee 
applied research to help airports find near-term solutions to problems that they are 
experiencing. I then facilitate the dialogue between the expert panels and the contract 
research team .... 
[The petitioner] is certainly considered one of the most qualified and trained Aviation 
Managers in the country. She is one of a select few of Aviation Managers with a 
Master's degree in Aviation Management. ... 
The attainment of the Master's degree provides [the petitioner] a more in-depth and 
specialized knowledge of issues relating to aviation safety and security .... 
[I]n her current position at the 
undertaken the following duties, which are well 
Managers: 
[the petitioner] has 
scope of most Aviation 
Airport Operations Safety: Coordinator for the FAA required Emergency 
Tabletop Exercise. 
Airspace Navigational Safety: Update and submit critical airport information 
for the national Airport Facility Directory AlFD. 
Technical writing: Perform technical writing for the Airport 
Emergency Plan. 
Page 7 
I am aware that [the petitioner] has certifications from Dynatest (regarding friction 
testing of runways) and FEMA (regarding emergency management). The level of 
knowledge required to obtain these certificates does further differentiate [the 
petitioner] from many of her peers. 
As previously noted, 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 field. Academic 
degrees and professional certifications are components of a claim of exceptional ability. See 
8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (C). The plain language of the statute makes it clear that aliens of 
exceptional ability are, as a rule, subject to the job offer requirement. Putting these various 
provisions together, it is evident that the petitioner cannot establish eligibility for the national 
interest waiver simply by showing that she possesses degrees and certifications that most in her field 
do not possess. Special or unusual knowledge or training, while perhaps attractive to the prospective 
U.S. employer, does not inherently meet the national interest threshold. The issue of whether 
similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the 
Department of Labor. NYSDOT, 22 I&N Dec. 221. 
ontinued: 
Lastly, [the petitioner] is so well regarded as an Aviation Manager that she was 
nominated and selected to serve on the Transportation Research Board's Airport 
Cooperative Research Program Workshop on Airport Operations, to identify issues 
that could benefit from research conducted by the Airport Cooperative Research 
Program, in Washington DC. Only 12 aviation professionals were selected and 
invited to participate .... 
[The petitioner] actively contributed to the workshop by identifying airport operations 
issues that can be solved by research. Her influence in applied research and best 
management practices for airport operational safety and other issues was invaluable 
to the identification of issues in the workshop. The end result was a list of potential 
issues of which one will be researched for this Fiscal Year (2011) and the rest will be 
evaluated for the Fiscal Year 2012 program. 
did not state how many aviation managers were nominated to participate in the 
workshop, criteria the FRB used in selecting the participants, or the number of such panels that 
the FRB convenes in a given year. not indicate that the workshop resulted in 
anything other than "a list of potential issues" for future research. 
stated: 
[The petitioner's] enhanced roles as compared to other aviation managers are due to 
her proven superior qualifications, demonstrated knowledge and abilities, as 
compared to her peers .... [H]er qualifications are indeed significantly greater in 
some capacity to the majority of her peers. Consequently, she is able to lead and 
Page 8 
complete specialized assignments that impact the nation's aviation system as a whole. 
Such assignments include: 
./' Technical writing of the Airport Emergency Plan - a critical and comprehensive 
FAA required document. . . . This includes aircraft accident and emergencies, 
natural disasters, bomb threats, hazardous materials procedures, due to her 
education and training, as well as her FEMA certifications .... 
./' Completion of the FAA required Emergency Tabletop Exercise - a multi­
jurisdictional/multi -agency training exercise .... 
./' Ongoing Runway Friction Testing - a critical test of paved runway surfaces at the 
airport. This is a specialized skill that [the petitioner] is certified in. Not many 
Aviation Managers have this certification .... With the winter season upon us, it 
would be very difficult and costly to get another certified Aviation Man[ a ]ger to 
perform this safety critical function . 
./' Selection to serve on the TRB project - being an accomplished Aviation Manager 
with her specialized education, training, background and abilities has led to [the 
petitioner's] selection to serve on the TRB project. In my opinion, this shows that 
she is able and has served the national interest to a substantially greater extent 
than the majority of her peers, as only 12 aviation professionals were selected in 
the nation, for this prestigious honor. 
./' ... [The petitioner] is slated to continue the proj ect with the TRB in Washington 
DC the work week of December 13, 2010 .... Invitation to serve on an Aviation 
panel and to work with such a distinguished organization as the TRB is a 
significant accomplishment. ... 
Here is an overview of what [ the petitioner] is expected to be engaged in for this 
project for the next 20 months (anticipated project timeline): 
o Develop the scope of task for Aviation Research as it relates to Airport 
Operations 
o Oversee work in Request for Proposals (RFPs) 
o Panel meeting (schedule for March 2011) 
o Review Submitted Proposals 
o Meet with the research team throughout the process 
o Answer technical questions posed at the Panel 
o Provide technical guidance for the contracted aviation research project 
o Provide to the TRB a Draft, Interim and Final Report for the project. 
~id not explain how the petitioner's participation in "FAA required" activities sets her 
apart from other aviation managers, who are presumably subject to the same FAA requirements as 
the petitioner. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
Page 9 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content of those letters as 
to whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. 
Comm'r. 1972)). 
The witness letters do not establish that the petitioner has been an especially influential figure in her 
field. The AAO notes the petitioner's participation on TRB panels, which produce recommendation 
for national implementation, but these results are the inherent goal and purpose of those panels. The 
record does not contain sufficient information about the panels to establish that the petitioner's very 
participation is, itself, a hallmark of the impact of her efforts. 
The director denied the petition on January 21, 2011. The director acknowledged the intrinsic merit 
and national scope of the occupation, but stated that the witness letters "do not overcome the lack of 
documentary evidence that the beneficiary's work has made an impact in the field." The director 
repeated the assertion that a shortage of qualified workers would make the position more, not less, 
amenable to labor certification. 
On appeal, the petitioner submits several new exhibits. Counsel asserts that this "documentation is 
sufficient to demonstrate that [the petitioner's] abilities in the field of Aviation Management are 
greater than the majority of her peers. This documentation also proves that [the petitioner's] work as 
an Aviation Manager has made a substantial impact in her field." The first quoted sentence is quite 
similar to the regulatory definition of "exceptional ability" which, as explained, is not sufficient to 
establish eligibility for the waiver. 
The petitioner submits documentation showing that the Florida Department of Transportation named 
two Jacksonville airports "Florida General Aviation Airport of the Year" - Craig Airport in 2003 
and Cecil Field in 2006 - while the petitioner was an aviation manager in Jacksonville. The 
implication is that the petitioner was responsible for these awards, but the documentation does not 
name the petitioner or show to what extent the awards rested on her work. Press releases from 
airport authorities mention various projects which the petitioner or counsel have highlighted in blue 
ink and claimed as the petitioner's projects. 
Page 10 
Even if the petitioner's work was responsible for the honors earned by the two Jacksonville airports, 
the evidence does not show that the petitioner had lasting or widespread impact on her profession. 
The record, for example, does not show that other airports have adopted methods or practices that 
the petitioner developed. 
The petitioner documented her involvement in additional TRB panels. The TRB did not invite the 
petitioner to participate until after the petition's August 2010 filing date; the invitation letters are 
from September and November of that year. Even if the petitioner had shown its significance, it 
could not retroactively establish eligibility as of the petition's filing date. An applicant or petitioner 
must establish that he or she is eligible for the requested benefit at the time of filing the application 
or petition. 8 C.F .R. § 103 .2(b)(1). USCIS cannot properly approve the petition at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). The petitioner submitted no evidence of the criteria by 
which the TRB selects its panelists. 
The remaining exhibits submitted on appeal concern the petitioner's academic and vocational 
training. These materials establish her credentials as an aviation manager, which the director had not 
questioned. As previously explained, elements that would support a claim of exceptional ability 
(including academic degrees and professional certification) cannot suffice to exempt the petitioner 
from a requirement that normally applies to aliens of exceptional ability. 
The materials submitted with the petition and on appeal serve to demonstrate that the petitioner is a 
well-trained professional who has been active in her field. These materials do not, as claimed, self­
evidently show that the petitioner has been an especially influential figure in that field. 
As is clear from a plain reading of 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 national 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 waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.