dismissed EB-2 NIW Case: Contracting And Project Management

(b)(6)
DATE: MAR 2lt ZD14 OFFICE: TEXAS SERVICE CENTER 
IN RE: . Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi gration Services 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for AJien 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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case . 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-prec edent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to prese nt new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http: //www.uscis.gov/ forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenber 
Chief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The AAO summarily dismissed the petitioner's appeal. The 
matter is now before the AAO on 
a motion to reopen. The AAO will dismiss the motion. 
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. Both attorneys belong to the same firm. 
The petitioner filed Form I-140, Immigrant Petition for Alien Worker, on November 4, 2011, 
seeking classification under section 203(b )(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner 
seeks employment as a contracting specialist in contracting and project management relating to the 
construction and petrochemical industries. 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 denied the petition on October 1, 2012 , having 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. 
The petitioner appealed the decision on October 30, 2012. On Form I-290B, Notice of Appeal or 
Motion, prior counsel checked a box indicating that a "brief and/or additional evidence will be 
submitted to the AAO within 30 days." Instructed to "[p]rovide a statement explaining any erroneous 
conclusion of law or fact in the decision being appealed," prior counsel provided one sentence, quoted 
further below. When the appeal reached the AAO, the record of proce eding contained no subsequent 
brief or additional evidence. 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 103.3(a)(1)(v) 
states: "An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the 
appeal." The AAO summarily dismissed the appeal on February 19, 2013, stating: 
On the Form I-290B Notice of Appeal, filed on October 30, 2012, counsel indic ated 
that a brief would be forthcoming within 30 days. To date, more than three months 
later, careful review of the record reveals no subsequent submission; all other 
documentation in the record predates the issuance of the notice of decision. 
The statement on the appeal form reads simply: "The decision is arbitrary and 
capricious and is not consistent with the statute from which the appellate provi sion 
derives its legal authority, nor is it consistent with published regulations." This is a 
general statement that makes no specific allegation of error. Counsel, for example, 
does not cite any specific regulation or explain how the decision is inconsistent with 
it. The bare assertion that the director somehow erred in rendering the decision is not 
sufficient basis for a substantive appeal. 
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The petitioner filed a motion to reopen on June 19, 2013. A motion to reopen must state the new facts 
to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 
8 C.P.R. § 103.5(a)(2). Any motion to reopen a proceeding before the Service filed by an applicant or 
petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that 
failure to file before this period expires, may be excused in the discretion of the Service where it is 
demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner. 
8 C.P.R. § 103.5(a)(1)(i). A motion that does not meet applicable requirements shall be dismissed. 
8 C.P.R.§ 103.5(a)(4). 
The appeal and motion process is not an open-ended opportunity for the petitioner to supplement the 
record or correct his own, or counsel 's, prior errors. Before the underlying merits of the petition can 
receive any consideration, the petitioner must first demonstrate that the AAO erred in summarily 
dismissing the appeal. 
Counsel, on motion, acknowledges that the motion is untimely, but asserts that the delay was reasonable 
and beyond the control of the petitioner because the decision "was only received by Petitioner on or 
about May 3, 2013, as a result of a mail delay," and therefore the petitioner could not have filed a 
motion within 30 days of February 19, 2013. 
The petitioner 's appeal included Fmm G-28, Notice of Entry of Appearance as Attorney or 
Representative, signed by the petitioner on October 25, 2012 and by prior counsel on October 29, 2012. 
That form listed the petitioner's address as ' 
and prior counsel's address as ' 
' The AAO issued two copies of the summary dismissal, and sent them to the two 
addresses specified on Form G-28.
1 
The U.S. Postal Service returned the petitioner's copy of the decision, marked "undeliverable as 
addressed I unable to forward." The petitioner is responsible for providing a correct mailing address; 
USCIS cannot be responsible for postal authorities' inability to deliver mail sent to the address that the 
petitioner has provided. There is no evidence that the U.S. Postal Service returned counsel's copy as 
undeliverable. Therefore , the record indicates that USCIS duly served prior counsel with the dismissal 
notice in a timely manner, at the address specified on Form G-28. Counsel , on motion, does not claim 
that he or prior counsel was unaware of the decision before May 2013. 
Even assuming that prior counsel did not receive the February 2013 dismissal notice, and therefore had 
no reason to begin preparing a motion until contacted by the petitioner in early May 2013, the motion is 
still untimely. Counsel signed Form I-290B on June 12, 2013, 39 days after the date that counsel claims 
the petitioner received the dismissal notice. Counsel's accompanying cover letter bears a date six days 
1 The motion to reopen includes a new Form G-28, signed by the petitioner on June 9, 2013 and by counsel on June 12, 
2013 . Part 3 of the form includes this instructi on befor e lines 6a-6d: "Provide the mailing address of Petitioner ... and 
not the address of the attorne y." Despite this instruction , the form provides counsel's Manhattan address on lines 6a-6d . 
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later, June 18, 2013. users received the motion the following day, June 19, 2013, 46 days after the 
claimed receipt date. 
The petitioner has not accounted for the late filing of the motion. This late filing, by itself, is grounds 
for dismissal of the motion under 8 C.F.R. §§ 103.5(a)(1)(i) and (4). 
Counsel alleges USCIS error in summarily dismissing the appeal, because "[t]he petitioner submitted 
the [appellate] brief to the address specified on the USCIS' website within the proper timeframe." 
Shipping receipts submitted on appeal show that counsel sent a brief to a USCrS address in Phoenix, 
Arizona, on November 26, 2012, and to another USCrS address in Dallas, Texas, on December 6, 2012. 
Counsel submits no printout from US CIS's web site instructing the petitioner to submit a supplemental 
brief and/or evidence (as opposed to Form r-290B itself) to either of those addresses. 
Every benefit request or other document submitted to the Department of Homeland Security must be 
executed and filed in accordance with the form instructions, and such instructions are incorporated into 
the regulations requiring its submission. 8 C.P.R. § 103.2(a)(1). The instructions to Form r-290B 
include the following passage: 
You may submit a brief and evidence with Form r-290B. Or you may send these 
materials to the AAO within 30 days of filing the appeal. You must send any materials 
you submit after filing the appeal to: 
USCrS Administrative Appeals Office 
U.S. Citizenship and Immigration Services 
20 Massachusetts Avenue, N.W., MS2090 
Washington, DC 20529-2090 
The above instruction is consistent with the USCrS regulation at 8 C.P.R. § 103.3(a)(2)(viii), which 
states that appellants must submit supplemental briefs directly to the AAO. Rather than follow the 
above instructions in compliance with the regulations, counsel submitted appellate briefs to two other 
addresses not equipped to process briefs. The AAO did not receive the briefs, and the dismissal notice 
contained the factually correct assertion that the record did not contain an appellate brief at the time of 
the dismissal. Counsel has not established USCIS error on this point. 
Counsel asserts that the "petitioner did provide sufficient allegation of USCIS error ... on the Form 
I-290B submitted previously. " Counsel quotes from the initial appeal statement: "The decision is 
arbitrary and capricious and is not consistent with published regulations." The summary dismissal 
notice indicated that prior counsel did "no t cite any specific regulation or explain how the decision is 
inconsistent with it." 
· On motion, counsel states that the cover letter submitted with the appeal identified the relevant 
regulation as 8 C.F.R. § 204.5(k). The cited section contains several different regulations, including 
evidentiary requirements and definitions of terms. Identifying the regulation as 8 C.F.R. § 204.5(k) 
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Page 5 
would not have made the appeal a substantive one. As the dismissal notice stated, the appeal was 
deficient because the petitioner did not "explain how the [director's] decision is inconsistent with" 
the regulations. The initial appeal statement identified no deficiency, instead offering only the 
general allegation that the director's "decision is arbitrary and capricious." This statement is a 
conclusion, offered without supporting premises. Counsel endeavors to expand upon this statement 
on motion, stating that the director disregarded "overwhelming evidence" of eligibility. This 
assertion is still a general claim that identifies no specific error, but the initial appeal did not contain 
this claim. It consisted of one sentence, quoted above, that generally alleged error but did not 
identify any such error. 
The record identifies errors and omissions by counsel with respect to the appeal and the motion, but it 
does not show adjudicative error by the AAO relating to the summary dismissal of the appeal. The 
petitioner's untimely motion does not meet the requirements of a motion to reopen, and therefore the 
USCIS regulation at 8 C.P.R.§ 103.5(a)(4) requires that the motion "shall be dismissed. " 
Beyond the above discussion, the record does not show that consideration of the appellate brief would 
have resulted in approval of the petition. 
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. By the wording of the 
statute, above, aliens of exceptional ability are subject to the job offer requirement. The USCIS 
regulation at 8 C.F.R . § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly 
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above that ordinarily encountered." Therefore, evidence of such a degree of expertise in one's field is 
not sufficient to establish eligibility for the waiver. 
In reNew York State Dep 't of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. 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. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien ' s past record justifies projections of future benefit to the national interest. !d. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest catmot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. !d. 
The petitioner's initial submission consisted primarily of letters from witnesses who have taught or 
worked with the petitioner; certificates and other materials showing the petitioner's involvement in 
symposia, task forces, and other professional activities; and copies of the petitioner 's scholarly writings . 
On April 26, 2012, the director issued a request for evidence (RFE). The director requested additional 
evidence relating to all three prongs of the NYSDOT national interest test. The director stated that the 
petitioner did not provide a sufficient description of his work to establish its intrinsic merit. The 
director asserted that the submitted letters were from employers and colleagues rather than independent 
witnesses, and that th~ petitioner 's work appeared to benefit primarily his own employers and clients. 
The director found that the petitioner had not sufficiently explained how his future work would benefit 
the United States on a national scale. The director stated that the petitioner "must establish a record of 
specific prior achievement with some degree of influence on the field as a whole." 
The petitioner 's response to the RFE consisted of a statement from prior counsel, a copy of the 
petitioner's previously submitted introductory statement, and "an expert Advisory Opinion Letter" from 
Prior counsel stated that the 
petitioner's occupation has substantial intrinsic merit because it addresses "project time overruns," 
which are "of particular importance in both the Construction Industry and Petrochemical Industry." 
Prior counsel contended that the petitioner's work would produce benefits that are national in scope 
because he will "find ways to ftuther reduce time and cost while maintaining quality of construction and 
petrochemical projects ," which "will ultimately attract investors to commence new projects " a11d "in 
tum, create new jobs for Americans." Prior counsel stated: 
As Contracts Specialist [at _ one of [the petitioner's] primary tasks [at~ 
was to review thousands of technical and contractual documents of an under-
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NON-PRECEDENT DECISION 
construction Polyethylene Plant (approximate value of US $0.5 billion) in order to 
uncover reasons and find solutions for US $125 million cost overage and a 10-month 
time overrun. 
Prior counsel stated that a four-member task force, including the petitioner , "held several meetings with 
the contractor's senior management and legal advisors to precisely present them the true picture ," which 
allowed' .. to achieve the intended goals .... As a leamed lesson, decided to use this 
expertise on other projects in order to avoid a similar situation." 
Prior counsel asserted that the national interest waiver is in order because the petitioner "possesses 
exceptional and unique international expertise in the field of Project Management, he has influenced his 
field to a substantial degree and will continue his extraordinary work in the U.S., if permitted to 
immigrate." Prior counsel also asserted that the petitioner's "skills are urgently needed now in the 
U.S.," whereas "the Labor Certification Process ... [takes] at least 2-3 years to complete," and that the 
petitioner 's "background and skills are unique and cannot be properly articulated on a labor certification 
application." Prior counsel further stated that the petitioner "will likely not work for any one traditional 
employer." 
Prior counsel stated that the petitioner's "work has been published in refereed peer review joumals and 
cited in multiple intemational joumals, " and claimed that "[ o ]nly the leading professionals in the field 
have their research published in prestigious journals .... Most noteworthy, his research paper ' 
IS 
~ -
cited by ten researchers ." The RFE response did not include documentation of the claimed citations or 
evidence to show that the number of claimed citations was particularly high in the specialty. The 
petitioner's co-authors on that paper are on the faculty of where the petitioner 
earned his graduate degrees between 1997 and 2003. 
Prior counsel quoted remarks made by on July 12, 1989, in support of an 
immigration "policy that encourages skilled workers and people with exceptional abilities to come to 
our country." The debate at that time led to the passage of the Immigration Act of 1990, which 
generally holds professionals and aliens of exceptional ability to a statutory job offer requirement. 
stated that his "[t]eaching and research concentration " were in the areas of "Supply Chain 
Modeling and Analysis, Statistics, Simulation Systems, Logistics, Inventory Management, and 
Production Planning." He added: "Prior to my current position , I worked 21 years in the textile industry 
both as a consultant, executive , and owner." Regarding the petitioner , stated: 
His unique and exceptional set of skills in project management, arbitration, human 
capital, and risk analysis were also demonstrated when he was able to review for 
) a Japanese Contractor claim of $120 milliom [sic], 
and based on his analysis and recommendations , the claim was friendly settle on [sic] 
less than $10 million. 
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In the October 1, 2012 denial notice, the director acknowledged the intrinsic merit of the petitioner's 
occupation, but found that the petitioner had not established that the proposed benefit is national in 
scope. The director stated: "The record shows that the petitioner has made contributions to his 
employers, who are located in the Middle East. However, the record has not shown how the petitioner 's 
work has impacted the field." The director discussed the petitioner's evidentiary exhibits and noted the 
lack of evidence that the petitioner 's "scholarly article had provided widespread public conunentary in 
the field or had the beneficiary widely cited by others in the field." 
In the subsequent appellate brief, prior counsel claimed that the RFE was deficient because it "did not 
articulate the type of evidence and/or documentation" that the petitioner needed to submit in order to 
establish eligibility, and was contrary to USCIS policy against issuance of"broad brush" RFEs. 
When prior counsel first responded to the RFE, there was no allegation that the RFE was overly broad 
or lacked sufficient detail for the petitioner to be able to submit a meaningful response. In the four-page 
RFE, the director acknowledged that the petitioner had submitted sufficient evidence to establish that he 
is a member of the professions holding an advanced degree. The director did not request redundant 
evidence regarding a requirement that the petitioner had already met. The director only requested 
evidence relevant to the national interest waiver application. 
The director addressed each of the three prongs of the NYSDOT national interest test and provided 
examples of evidence that could satisfy those prongs. For example, the director stated that the petitioner 
could establish national scope with: 
• Evidence that [his] work has provided widespread public commentary in the field or 
has been widely cited; and 
• Evidence of [his] work being implemented by others throughout the nation. Possible 
evidence may include but is not limited to: 
o Contracts with companies using [his] ideas and products; 
o Licensed technology being used by others; or 
o Patents currently being utilized and shown to be significant in the field. 
The director also indicated that qualifying evidence could include: 
• Documentation to show [the petitioner has] created jobs domestically for U.S. 
workers; 
• Additional letters from current or former employer(s) or client(s) with personal 
knowledge of the significance of [his] present and past contributions ... ' 
• A detailed statement that describes, in plain English, the significance of [his] 
accomplishments in the fields of contracting and project management, supported by 
corroborating, independent, documentary evidence ... ; 
• A list of current and prospective clients in the United States. 
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The record does not supp011 prior counsel 's claim, not raised until the appeal, that the RFE lacked 
specificity or failed to take prior evidence into account. 
Prior counsel asserted that the decision "clearly did not meet the 'preponderance of the evidence' 
standard ... The decision dismissed many of the strongest pieces of evidence, failed to mention others 
and imposed evidentiary requirements which are nowhere to be found in any users regulation, field 
manual or operating instruction." In expanding on this claim, prior counsel identified only one prior 
submission, specifically l s letter. Ptior counsel asserted: " , expert opinion letter is 
an independent testimonial letter. The failure to give any significant weight to this letter clearly raises 
the presumption that this decision did not meet the 'preponderance of the evidence' standard ." Prior 
counsel did not show how the stated premises support the stated conclusion. 
users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (eomm 'r 1988). However, 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; users may, as above, evaluate the content of those letters as to 
whether they support the alien 's eligibility. users may even give less weight to an opinion that is 
not corroborated , in accord with other information or is in any way questionable. See id. at 795. 
In this instance, after the director requested letters from independent experts, the petitioner responded 
with a letter from an individual with a background in the textile industry, who claimed no experience in 
the petrochemical industry and no expertise in contracting management. did not explain how 
he knew the petitioner's accomplishments to be particularly significant in the context of his specialty. 
Prior counsel stated: 
The [adjudicating] officer further dismisses the Appellant[']s research and publications 
by stating that his work had not "been widely cited by others in the field." The facts, 
however , 
speak otherwi se. s expert opinion letter clearly notes "that his work 
is cited by US researchers from prestigious universities . .. . " 
The evidence, however , clearly demonstrates that [the petitioner's] work has been cited, 
discussed and utilized by researchers in the United States and around the world. 
; letter is not evidence of citation of the petitioner's work. It is, rather, a claim to that effect. 
See 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"). See also Matter of Soffici, 22 I&N Dec. 158, 165 
(eomm'r 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec . 190 (Reg '! eomm 'r 
1972)) (going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings). 
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The appellate brief includes the web addresses for search results on the database. Prior counsel 
stated that these results establish numerous citations of the petitioner's published work. The petitioner 
did not submit printouts of the actual search results, and is a subscription service that requires 
users to log in with a username and password. Therefore , the appellate brief did not include verifiable 
documentary evidence of the claimed citations. 
Furthermore, the director had requested such evidence in the RFE, and the petitioner did not submit 
evidence of citation at that time. When the director puts the petitioner on notice of required evidence 
and gives him a reasonable opportunity to submit it before the issuance of the decision , the AAO will 
not consider this evidence when offered for the first time on appeal. See Matter of Soriano, 19 I&N 
Dec. 764, 766 (BIA 1988); Matter ofObaigb ena, 19 I&N Dec. 533, 537 (BIA 1988). 
For the above reasons, the appellate brief would not have resulted in the approval of the petition, even if 
prior counsel had properly sent that brief directly to the AAO. As it stands, prior counsel did not submit 
the brief directly to the AAO, and the AAO correctly found that the record, at the time of its decision, 
contained no such brief. The motion was untimely filed, even allowing for the delay in delivery of the 
petitioner's copy (but not counsel's copy) of the appellate decision. 
The AAO will dismiss the motion for the above stated reasons, with each considered as an independent 
and alternate basis for the decision . In visa petition proceedings , it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden . 
ORDER: The motion is dismissed.