dismissed EB-2 NIW Case: Aviation Safety

identifying data deleted to 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
prevent c tearly ucwarranted 
 U.S. Citizenship 
invasion of personal privacy 
 and Immigration 
Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 140 51515 
 JUN 0 4 2009 
IN RE: 
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. $ 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
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. kj 1153(b)(2), as an alien of exceptional ability. The petitioner seeks employment as 
an aviation safety officer. The petitioner asserts that an exemption from the requirement of a job offer, 
and thus of a labor certification, is in the national interest of the United States. The director found that 
the petitioner has not established that he qualifies for classification as an alien of exceptional ability, or 
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 copies of previously submitted documents. 
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 first issue under consideration is whether the petitioner qualifies for classification as an alien of 
exceptional ability in the sciences, arts or business. Section 203(b)(2) of the Act does not establish a 
broad classification for "aliens of exceptional ability." Rather, that section of the law limits the 
classification to aliens of "exceptional ability in the sciences, arts, or business." The petitioner has not 
specified whether his occupation falls within the sciences, arts, or business. Counsel has repeatedly 
sidestepped the issue by referring to the petitioner simply as "an alien of exceptional ability." 
Therefore, the petitioner has not demonstrated that his occupation even falls withn the limited scope of 
the classification he seeks. Nevertheless, in the interest of thorough consideration of the record, we will 
discuss the evidence the petitioner has submitted. 
Page 3 
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 qualifl 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 hlfill the criteria below. Qualifications possessed by all or most workers in a given field 
cannot demonstrate "a degree of expertise sigmficantly above that ordinarily encountered." For 
example, every qualified physician has a college degree and a license or certification, but it defies logic 
to claim that every physician therefore shows "exceptional" traits. 
In his initial submission on April 12, 2007, the petitioner did not specifl which of the regulatory criteria 
he claimed to have met. He simply submitted copies of documents relating to his work and training. 
Furthermore, counsel stated that the petitioner "is a renowned Pilot . . . [who] has had an extensive and 
critically acclaimed career as a Pilot/Aviation Safety Officer." Counsel did not specify which 
occupation the petitioner seeks to pursue in the United States - that of a pilot, or that of an aviation 
safety officer. 
In a letter dated June 17, 2008, the director advised the petitioner that the director would deny the 
petition unless the petitioner submitted evidence to meet the regulatory standards listed at 8 C.F.R. 
5 204.5(k)(3)(ii). In response to the notice, counsel protested that the notice, although dated June 17, 
2008, was postmarked June 30, 2008, significantly reducing the petitioner's available response time. 
Counsel claims that this shortened response time reduced the petitioner's ability to obtain further 
evidence to support his petition. It is significant that the petitioner's appeal contains no new evidence, 
even though by that time several months had passed since the petitioner received the notice of intent to 
deny the petition. Also, the Form I-290B Notice of Appeal permits a petitioner to request an automatic 
one-month extension to obtain "additional evidence," but the petitioner did not take advantage of this 
opportunity. Therefore, it is not clear what fiuther evidence the petitioner would have submitted if he 
had had more time to prepare his response to the earlier notice. 
In the petitioner's response to the above notice, counsel asserted that the petitioner "is already employed 
at Miami International Airport as an aviation safety advisor." The petitioner did not claim to hold a 
United States pilot's license, nor did he assert that he intends to seek such a license. We therefore 
consider the petitioner to be pursuing employment in aviation safety, rather than as a pilot. 
The petitioner, through counsel, claimed to have met the following criteria. 
An official 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. 8 C.F.R. $ 204.5(k)(3)(ii)(A) 
The petitioner submitted copies of various training certificates dated between 1986 and 2004, with 
translations where necessary. Examples of the training courses include "Course in Advanced 
Flight," Air Force of Uruguay, 1987; "C-130 Loadplanner's / Familiarization Course," United States 
Air Force, 1990; and "Airport Emergency Planning," Caribbean International Airport, 1993. One 
course, in "Marketing Services," has no clear relevance to aviation. 
Counsel stated that the petitioner's training certificates established "that the alien possesses 
academic degrees or diplomas relating to the area of exceptional ability." 
In denying the petition on September 15, 2008, the director acknowledged the petitioner's 
educational background, but found: "the record does not establish that the petitioner's training is 
consistent with a degree of expertise significantly above that ordinarily encountered in other pilots or 
those working in the field of aviation safety." 
On appeal, counsel asserts: "the petitioner has received numerous of [sic] academic diplomas in 
specialized training as a pilot and aviation safety officer from governmental and private institutions 
in Uruguay and the United States." Counsel does not address the director's finding that the 
petitioner offered no basis of comparison to show that the petitioner's level of training is 
significantly higher than what is ordinarily encountered in his field. 
The materials in the record reflect the petitioner's completion of short-term training programs, rather 
than long-term academic courses. The petitioner has not shown that these certificates are 
comparable to the academic degrees contemplated in the language of the regulation. Also, only a 
handful of the certificates appear to relate to aviation safety. 
We affirm the director's finding that the petitioner has not submitted academic records sufficient to 
establish exceptional ability as an aviation safety officer. 
Evidence in the form of letter@) 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. 8 C.F.R. 5 204.5(k)(3)(ii)(B) 
We note that the regulations require ten years of experience in a given "occupation," which is 
narrower than a "field." A pilot and an aviation safety officer both work in the broad field of 
aviation, but they work in different occupations with very different duties. 
On his rksumk, the petitioner claimed 21 years of "Professional Working Experience," but he listed 
only seventeen and a half years in the Uruguayan Air Force from 1986 to 2004, interrupted by one 
year as an "Aviation Safety Officer" for the United Nations (UN) in Mbandaka, Republic of Congo. 
Following the director's notice, counsel stated that the shortened response period did not allow 
enough time for the petitioner to obtain letters from his former employer. The petitioner did, 
however, submit translated copies of various promotion certificates, dated between 1986 and 2004, 
as evidence of more than a decade of service in the Uruguayan Air Force. 
In the denial notice, the director found: "the petitioner has established that he has at least ten years 
experience as a pilot. However, the record does not reflect, nor does the petitioner assert, that he has 
at least ten years experience in the field of aviation safety, the field in which he is currently 
employed." The certificates submitted by the petitioner show only one year of aviation safety 
experience from July 200 1 to July 2002. 
Counsel devotes only one sentence of the appellate brief to the issue of the petitioner's work 
experience: "Because of the time restrains [sic] resulted by [sic] having only seven days to respond 
to the Service's notice, the petitioner was unable to obtain additional letters of employment showing 
at least 10 years of experience." Counsel does not claim that the petitioner has ten years of 
experience in aviation safety. The petitioner does not even identify any employer that employed him 
full-time in aviation safety, with the exception of his one year with the UN. 
We agree with the director. The petitioner has established ten years of experience as a pilot, but he 
has not established ten years of experience as an aviation safety officer. If the petitioner seeks 
employment as a pilot, then he meets this criterion. If, instead, he seeks employment in the separate 
occupation of aviation safety officer, then he does not meet this criterion because the record shows 
only one year of employment in that capacity. This "split decision" does not affect the ultimate 
outcome of the appeal, because the petitioner has not met at least three of the regulatory criteria at 
8 C.F.R. 5 204.5(k)(3)(ii), either as a pilot or as an aviation safety officer. 
Evidence of recognition for achievements and signzficant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. 5 204.5(k)(3)(ii)(F) 
The record shows that the petitioner received an "Above Average" performance rating for his work 
for the UN in 2001-2002, during which time he "set up and organized the Aviation Safety Unit." 
The petitioner submitted what counsel described as "a photo of a medal issued by the United Nations 
to the alien." The photograph, enlarged and somewhat out of focus, shows the legend "UN" and a 
world map encircled by a wreath, used as that organization's logo. The record, however, contains 
nothing from the UN to explain why the petitioner received the medal. It may be that he received 
the medal simply for serving the UN. The record does not show that the medal is a form of 
recognition for achievements or significant contributions to the petitioner's field. 
Counsel also claimed that the petitioner's "military promotions during his 19-year military career 
with the Uruguayan Air Force . . . reflect recognition by this governmental institution." The record, 
however, does not establish that the petitioner received these promotions owing to achievements or 
significant contributions, rather than for the expected progression of a career as a military officer. 
In the denial notice, the director found that the petitioner's "Above Average" performance rating is 
not sufficient evidence of exceptional ability as the regulations define that term. On appeal, counsel 
states that, given more time to respond to the notice of intent to deny the petition, "[tlhe petitioner 
could have obtained more documentation regarding his mission with the United Nations. The 
petitioner could have obtained additional documentation regarding his accomplishments within the 
Uruguayan Air Force." Counsel does not explain why the petitioner did not submit this unidentified 
"additional documentation" on appeal. 
The assertion that the petitioner would have submitted more evidence cannot take the place of the 
evidence itself. We will not overturn the director's decision based on the vague claim that some type 
of qualifying evidence exists outside the record. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of SofJici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 
14 I&N Dec. 190 (Regl. Commr. 1972)). The unsupported assertions of counsel do not constitute 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1,3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner has documented a long and apparently successful career in the Uruguayan Air Force, 
including a one-year tour of duty with the United Nations in Africa. The petitioner has not, 
however, established that he has received recognition for achievements or significant contributions 
as either a pilot or an aviation safety officer. We affirm the director's decision in this regard. 
For the above reasons, we agree with the director that the petitioner has not established that he 
qualifies for classification as an alien of exceptional ability in the arts, sciences or business. 
The second and final issue is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the waiver 
must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The record does 
not contain this required document, and therefore the petitioner has not properly applied for the 
national interest waiver. The director, however, did not raise this issue. We will, therefore, review 
the matter on the merits rather than leave it at a finding that the petitioner did not properly apply for 
the waiver. 
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, lOlst 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] believes it appropriate 
to leave the application of this test as flexible as possible, although clearly an alien 
seeking to meet the [national interest] standard must make a showing significantly 
above that necessary to prove the "prospective national benefit" [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with the alien to establish 
that exemption from, or waiver of, the job offer will be in the national interest. Each 
case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 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 hnges 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. 
In the initial submission, the petitioner indicated on Form 1-140 that he seeks a national interest 
waiver. Counsel, however, did not address the waiver issue in the accompanying cover letter. 
Rather, counsel stated that the petitioner sought classification "as an Alien of Extraordinary Ability 
pursuant to Title 8 CFR 214.2(0)," which is a nonimmigrant classification. Following the issuance 
of the notice of intent to deny the petition, counsel clarified that the petitioner seeks classification 
"as an alien of exceptional ability" with a national interest waiver. 
Counsel stated: 
The alien seeks employment as a pilotlaviation safety [sic]. The alien's past work 
experience and prior achievements, including being selected to work for the United 
Nations, reflect prospective national benefit. The alien's specialized knowledge as 
the United Nations7 Aviation Safety Officer played a major role in the success and 
completion of the UN mandated mission in the Republic of Congo. The waiver 
would serve the national interest because the alien possess [sic] skills and knowledge 
in the aviation industry not regularly found in U.S. workers having the same 
minimum qualifications. 
The alien's specialized abilities would benefit the aviation safety industry nationally. 
In fact, the alien is already employed at Miami International Airport as an aviation 
safety advisor. Again, we are unable to present evidence of this because we had only 
seven days to respond to this notice. 
Page 8 
It is not clear why the petitioner would have no evidence in his possession to establish his employment 
at Miami International Airport, or why such evidence would take more than a week to obtain from his 
daily workplace. 
More importantly, the petitioner offered no specific information or evidence to show how he would 
benefit the United States more than other qualified workers in his field. Certainly, aviation safety is 
important, but this speaks to the occupation's intrinsic merit rather than the qualifications of any one 
particular aviation safety specialist. With respect to the petitioner's work as a pilot, the petitioner has 
not explained how it would serve the national interest for him, in particular, to work as a pilot in the 
United States. 
In denying the petition, the director acknowledged the intrinsic merit of aviation safety, but found "the 
record does not contain sufficient evidence regarding the petitioner's employment to determine whether 
or not it can be considered national in scope." The director also stated that the petitioner's "long and 
successful military career as a pilot in the Uruguayan Air Force" does not establish "influence on the 
field as a whole, either as a pilot or an aviation safety advisor." 
On appeal, counsel repeats the assertion: "The alien's specialized knowledge as the United Nationsy 
Aviation Safety Officer played a major role in the success and completion of the UN mandated mission 
in the Republic of Congo." Counsel adds: "The fact that the petitioner was exclusively selected to 
supervise the aviation safety operations for the United Nations, an international agency that promotes 
world peace and cooperation between all countries, reflects that he has specialized knowledge and made 
significant accomplishments that merit the national interest waiver." 
Counsel provides no evidence to support any of the above claims, and the often-repeated assertion that 
the petitioner had only a week to respond to the notice of intent to deny the petition does not explain 
why the petitioner did not obtain fiuther evidence during the month that passed between the denial and 
the filing of the appeal. The petitioner did not provide any evidence about how the UN selects 
personnel for missions such as the petitioner's detail to the Republic of Congo. While it is true that the 
UN is an important international organization, it is equally true that the UN is a very large organization 
rather than a highly exclusive elite. We do not unquestioningly accept the claim that an alien who 
works for the UN must, therefore, be an important and influential figure in his or her field. 
The petitioner has not established any significant, widely-established contributions to aviation safety. 
The petitioner has not explained how his work as a pilot does, or even could in theory, serve the 
national interest to a greater extent than another competent pilot. The petitioner has simply asserted that 
he is an experienced pilot who briefly served with the UN as a safety officer. This is not a sufficient 
basis for approval of the national interest waiver he seeks. We therefore agree with the director's 
decision to deny the petitioner's application for the national interest waiver. 
As is clear fi-om 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. 5 136 1. 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.