dismissed EB-2 NIW Case: Disaster Management

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJe of Admrnrstratrve Appeals MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
prevent Clearly ~~~arrrrznted U.S. Citizenship 
invasion of ~ersonal privacy 
 Services and Immigration 
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. 5 1 153(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. 5 103.5 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 
e motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, California 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. 5 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner seeks 
employment as a disaster management expert. The petitioner is the president, chief operating officer, 
and sole owner of Emergency and Disaster Management, Inc., Los Angeles, California. 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 an 
exemption from the requirement of a job offer would be in the national interest of the United States. 
Throughout the course of the appeal, the petitioner has submitted attorney briefs, letters, and various 
documents. 
The petitioner's initial attorney of record was - . 1 When the appeal was filed in 
attorney of record was 
shall refer only to the petitioner's present attorney of record, 
Although space does not permit a detailed discussion of every exhibit in the record, the AAO has 
reviewed the full record in adjudicating the appeal. 
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. 
OnOctoberpled guilty to one count of conspiracy, in violation of 18 U.S.C. tj 371, and two 
counts of visa fraud, in violation of 18 U.S.C. 46 1546(a) and (bM2). As a result. on October 25. 2007. the Board of 
. ,\ , 
Immigration Appeals (BIA) suspende %om practice in matters before the ~e~aiment' of Homeland 
Security (DHS). On December 6, 2007, the BIA expelled 1 from practice before the BIA, immigration 
courts, and the DHS. Source: http://www.usdoj.gov/eoir/vrofcond!F@f 
(visited June 23,2009; copy added to record.) 
(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 directly rule on the petitioner's claim of eligibility as an alien of exceptional ability 
in the sciences. The AAO will not make an initial finding on that issue, as it would not affect the 
outcome of the appeal. The sole issue in contention is whether the petitioner has established that a 
waiver of the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 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 (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 hture 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. 5 204.5(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, an 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 etition on June 4, 2004. In a statement accompanying the petitioner's initial 
submission, ddescribed the petitioner's work: 
Due to the increased role of counter-terrorism and national defense in the Post 9-1 1 
world, it is critical that we as a nation utilize the much needed services of 
international experts in the fields of both emergency preparedness and disaster 
management. 
The beneficiary in this case is one of the few experts in these fields and has over 20 
years of experience. Over the years, [the petitioner] has published reports in 
international trade magazines on topics such as Aviation and Train Disasters, SARS, 
E Coli 0 157, and even on the dangers of using Aircraft as a weapon in 2000. . . . 
[The petitioner] has ties with the Department of Homeland Security, and he has been 
certified by The U.S. Department of Justice as a trainer for Emergency Response to 
Terrorism. Since 2000 he has trained and educated hundreds of emergency service 
and security professionals from local, state, and federal agencies. . . . 
[The petitioner] has been featured on natienal and international media, including 
radio (i.e., Radio Nederland in the Netherlands on March 1 lth, 2002) and television 
(i.e., BR Bavarian TV in Germany, Channels [sic] News Asia on January 23rd, 2002, 
ORF- in Austria in 2002, KCAL Los Angeles in May of 2004). 
It is expected that a few officials from the Department of Homeland Security andlor 
Government Officials will contact the adjudicating officer in this case to ensure that 
this petition is handled in an expeditious manner. [The petitioner] has gained national 
and international recognition in the field of disaster management and counter- 
terrorism. He is regarded as an expert in the field by many of the industry's leading 
organizations. . . . 
[The petitioner] has given over 60 presentations in Disaster Management at International 
Symposiums in recent years and has been elected to serve on Executive Boards of 
several leading associations in his field. 
The goals of Emergency and Disaster Management, Inc. are to provide consultation and 
recommendations to private, industrial and public organizations on the handling of a 
wide variety of manrnade and natural disasters. 
 Through identifying hazards and 
vulnerabilities, [the petitioner] and his staff evaluate the effectiveness of existing fire and 
rescue agencies, and then develop real working emergency guidelines, train the staff and 
consult on comprehensive emergency management programs. 
did not describe the petitioner's claimed "ties with the Department of Homeland 
Security," and the record contains no documentation of such ties. 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 of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Also, there is no indication that any DHS official has intervened on the petitioner's 
behalf at any stage of this proceeding. 
Much of the petitioner's initial submission consists of materials prepared by the petitioner's company 
such as pamphlets and electronic slide presentations. The petitioner also submitted certificates 
establishing his attendance at seminars and his participation in training classes (both as a student and as 
an instructor). These materials demonstrate the nature of the petitioner's work, but do not establish that 
the petitioner's work stands out from that of others in the field. The fundamental nature of the 
petitioner's work speaks to the intrinsic merit and national scope prongs of the national interest test, but 
not to the petitioner's individual qualifications for the waiver. The importance of a given field of 
endeavor does not establish a blanket waiver for workers in that field. See Matter of New York State 
Dept. of Transportation at 2 1 7. 
The etitioner submitted several witness letters attesting to the petitioner's accomplishments. - dh Executive Director of the International Association of Emergency Managers (IAEM), 
stated: 
[The petitioner] became involved in IAEM in 1999 when he was chosen to be part of a 
delegation of subject matter experts to visit Italy. . . . [The petitioner] represented our 
organization well with his expertise and knowledge. 
[The petitioner] has served as IAEM's International Committee Chair and is presently a 
member of the Board of Directors as President of Region 9 (AZ, CA, HI, W, and the 
Pacific Trust Territories). He also regularly conducts special advanced emergency 
management training at IAEM's Annual Conference, and provides editorial 
contributions to the monthly newspaper on current disaster topics such as aviation 
disasters and train crashes. He provides leadership to emergency managers in hs region 
and throughout the United States. 
[The petitioner] was, and still is, a leader and major contributor within ths Association. 
. . . He provides a wide spectrum of emergency management training within IAEM for 
public safety personnel representing many disciplines. He also was instrumental in the 
development of IAEM's International Committee and Task Force which facilitated 
international public safety partnerships under [the petitioner's] leadership. 
I have attended [the petitioner's] workshops which are considered to be among the best 
of their kind by participants who I have talked with, which only further confirms that 
which I already know - [the petitioner] provides first rate training and support services 
that go a long way in improving public safety capability to deal with unanticipated 
disasters including the now persistent threat of terrorism. 
president of the National Air Disaster Alliance and Foundation (NADAIF), stated that 
the petitioner's "professional expertise has helped NADMF and others develop disaster management 
policies, implement effective plans, and respond to the every-changing [sic] world of emergency 
disaster response and management." 
Past President of the American Association of Professional Emergency Planners 
and currently Executive Director of the Office of Disaster Management for Area G (described as "the 
South Bay portion of Los Angeles County"), described the 
 as "an internationally respected 
expert in the field of transportation disasters, and particularly in aviation disasters." Other state and 
local authorities, as well as officials of various organizations, offered similar endorsements to those 
quoted above. 
The petitioner also submitted copies of articles that the petitioner wrote for various trade publications 
between 1999 and 2003. The articles concern such diverse topics as E. coli contamination, railroad 
accidents, and the terrorist attacks of September 11, 2001. Other articles from various newspapers and 
magazines include interviews with the petitioner, typically on the occasion of his participation at local 
gatherings. 
On March 23,2005, the director issued a request for evidence (WE), instructing the petitioner to submit 
"[clurrent letters or affidavits from recognized governmental or private organizations/agencies 
confirming the benefit the beneficiary's skills and prospective employment, to a greater extent than U.S. 
workers having the same minimum qualifications, will provide to the United [Sltates." A cover sheet 
accompanying the notice advised the petitioner: "The information requested below must be received by 
this office no later than eighty-four (84) days from the date of this notice. If you do not provide the 
required documentation within the time allotted, your application will be considered abandoned." 
On June 14, 2005, 
 requested an extension until "the end of July 2005" to obtain 
materials to respond to the WE. - claimed "special circumstances" including "the 
leadership change from Tom Ridge to Michael Chertoff' as Secretary of Homeland Security and the 
ongoing preparation of "comprehensive, research based letters" fiom officials of IAEM. Mr. 
did not explain why the transition from Secretary Ridge to Secretary Chertoff affected the 
petitioner's ability to obtain evidence during the allotted 12-week response period. The regulation at 
8 C.F.R. $ 103.2(b)(8), as in effect at the time of the WE in 2005, required that "[aldditional time may 
not be granted" to respond to an WE. The regulation made no allowance for "special circumstances." 
Page 7 
As for 
 justification for the requested extension (the first in a series of such requests), 
we have already observed that the assertions of counsel do not constitute evidence, even when an 
attorney's credibility is not subsequently tarred with a fraud conviction as is the case here. 
claimed that "a shortage of highly qualified emergency managers" qualified the 
petitioner for the national interest waiver. Binding case law specifically rules out worker shortages as a 
basis for the waiver. See Matter of New York State Dept. of Transportation at 2 1 8.2 
On December 28, 2005, the director denied the petition. The director acknowledged the petitioner's 
request for an extension, but found that "the petitioner has yet to submit the requested evidence." The 
director determined "[tlhe petitioner has not complied with the USCIS' request for evidence" and 
denied the petition accordingly. The director did not deny the petition for abandonment, whch, 
pursuant to 8 C.F.R. 5 103.2(b)(15), would have precluded appeal of the denial. Instead, the director 
denied based on failure to submit sufficient evidence, and allowed the petitioner to appeal the decision. 
On appeal, stated: 
[Tlhe Service, in their notice of decision, state that they requested more specific 
evidence to show that granting of the Petitioner's waiver request would be in the 
national interest. Petitioner is at a loss to understand what further evidence would 
satisQ the Service in light of the fact that voluminous documentation was submitted to 
substantiate this fact. The evidence that was submitted to the Service establishes beyond 
a doubt that Beneficiary is an expert in the field of Emergency and Disaster 
Management and that his skills and knowledge in this area would be a tremendous asset 
to the United States in protecting their citizens. 
alone explain, the petitioner's failure to submit any further evidence before the period of the requested 
extension had elapsed. 
The petitioner submitted two letters on appeal. The director had requested such letters in the RFE, and 
the petitioner failed to submit them at that time. Because the petitioner forfeited a prior opportunity to 
submit evidence specifically requested by the director, the AAO will not consider this evidence on 
appeal. See Matter of Soriano, 19 I&N Dec. 764,766 (BIA 1988); Matter of Obaigbena at 537. 
Because the AAO will not consider the newlv submitted letters. and the atmeal included no other new 
I I 
evidence, the appeal rested on 
 contention that the petitioner's initial submission was 
sufficient to establish the petitioner's eligibility. 
Section 203(b)(2)(B)(ii) of the Act, enacted after the promulgation of Matter of New York State Dept. of 
Transportation, made the waiver available to certain physicians in designated shortage areas. Congress created no 
comparable provision relating to shortages in any other occupation. 
Homeland Security" but, like the prior attorney, did not specify the nature of these "ties" or identify any 
evidence in the record that would shed light on the issue. 
During the review of the appeal, it came to the attention of the AAO that the State of California has 
suspended the corporate status of Emergency and Disaster Management, ~nc.~ The AAO visited the 
company's web site, http://www.emergency-management.net, and found that it contained no indication 
of any activity by the petitioner or his company later than 2007. On March 24,2009, the AAO advised 
the petitioner: "The evidence from your own web site does not indicate that you remain consistently 
active or a national presence in your field." The AAO also stated: "Because your national interest 
waiver claim relies heavily on the activities of your company, we cannot ignore the company's 
suspension when considering your ability to continue performing the activities that, you claim, serve the 
national interest." 
It is important to note, here, that the AAO did not indicate that the petition was on the edge of approval, 
or that evidence of recent activity would suffice to establish eligibility for the waiver. The AAO sought 
evidence of recent activity in order to provide context to the information discussed above. The AAO 
did not state that it would treat its March 2009 notice as a new opportunity for the petitioner to respond 
to the Marc 2005 RFE. The petitioner forfeited the opportunity to respond to that earlier notice. 
Concerning the waiver, the AAO will consider the petitioner's latest submission only insofar as it 
addresses the issues of the petitioner's recent activities, and the suspension of his company's status. 
On April 30, 2009, the AAO received a response fiom the petitioner's present attorney. Counsel 
asserted that the petitioner's uncertain immigration status has limited his ability to work in the United 
States, but "[olnce this petition is approved, [the petitioner] will be able to accept contracts with the 
government, universities, and travel throughout the United States and Internationally." The petitioner, 
at that time, did not submit any documentary evidence to show that any public or private entity had 
attempted to enter into contracts with the petitioner, only to be turned away because of the petitioner's 
immigration issues. 
With respect to the petitioner's recent activities, counsel stated: "If you www.google.com his name . . . 
you will be able to view numerous information [sic] about his recent activities (approx. 7000)." The 
petitioner submitted printouts from the Google search engine showing "about 7,000" search results. 
The "about 7,000" figure, however, is not limited to the petitioner's "recent activities." Rather, the 
figure relates to every web page that includes both the petitioner's first name and his last name, whether 
together or separate. 
Because counsel has chosen to incorporate Google searches into the record of proceeding, it is 
appropriate to examine the search parameters used. A May 12,2009 Google search for the petitioner's 
first and last name together, as a phrase, produced only 230 results. On the same day, a similar search 
3 
 Source: http://kepler.ss.ca.gov/comdata~ShowAllList?ueComNumber=C 1979900 (accessed on January 14 and 
March 24,2009; copy added to record). 
including the petitioner's often-used middle initial produced 463 results. (The AAO has added printouts 
to the record.) Given these figures, it appears that the majority of the 7,000 claimed search results 
involve coincidental uses of the petitioner's first and last name and do not refer to the petitioner at all. 
Furthermore, while Google permits searches restricted by date, counsel's search had no such 
restrictions. One of the listings shown on the petitioner's printouts concerns a workshop in 2003, 
clearly not among the petitioner's "recent activities." When the search is limited to pages modified 
during the past year (the broadest available date-related parameter), the petitioner's first and last name 
(as adjacent words) produce 16 results, while his name with the middle initial shows 49 results. 
(Searches conducted June 30,2009; printouts added to record). Seen in context, the reference to "about 
7,000" results showing the petitioner's "recent activities" is grossly exaggerated. 
Counsel requested additional time to supplement the petitioner's response to the AAO's notice. In the 
final submission, received in May 2009, counsel stated that the petitioner "has not been able to travel or 
accept opportunities with local, state and the federal government as well as universities. Therefore, for 
the past 3 years his ability to remain active in his field of expertise has been limited." Counsel asserts, 
nevertheless, that the petitioner "has been doing pro bono work for during [sic] the past 4 years or 
more," and "has been a speaker at countless conferences over the past 3 years." 
The petitioner himself states: "I remain most certainly consistently active and a national presence in the 
field of emergency management, despite the fact that EDM's web site does not indicate that." He 
claims: "I was a few times asked to apply for openings in local, state, and federal government as well as 
universities. Due to my -undecided- status I had to decline." The petitioner did not identify, much less 
document, these claimed "openings in local, state, and federal government." 
As evidence of his recent activities, the petitioner submits documentation establishing that he continues 
to serve as Region 9 President of IAEM-USA; that he is one of 51 members of the Editorial Board of 
the Journal of Emergency Management; and that he is a Board Member of the California Emergency 
Services Association, Southern Chapter. He also presented the keynote address at the 2009 
International Disaster Management Conference in Orlando, Florida. 
The latest submission establishes that the petitioner remains active in his field to the extent that his 
current status (or lack thereof) allows. The petitioner, however, is considerably less responsive 
concerning the suspension of the corporate status of Emergency and Disaster Management, Inc. The 
petitioner does not mention the suspension at all in his own statement. Previous submissions have 
included vague references to the "staff' of Emergency and Disaster Management, Inc.; the new 
submission does not show that the company has any employees at all. Counsel states only that the 
petitioner "has maintained his business office as evidenced by the rent payments," although the AAO 
had not expressed concern about the petitioner's rent payments. Counsel does not address the 
suspension, even though the AAO had specifically noted that suspension as a point of serious concern. 
Therefore, despite several requests for extensions (notwithstanding the petitioner's earlier efforts to 
expedite the adjudication of the appeal), the petitioner has responded only in part to the AAO's notice. 
Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for 
denying the application or petition. 8 C.F.R. 5 103.2(b)(14). 
The record contains evidence that the petitioner is, and has been, prominent in his field, but prominence 
is not automatic evidence of eligibility. The petitioner seeks an employment-based immigrant 
classification, but his positions with various regional and national organizations appear to be unpaid. 
Clearly, these functions are incidental rather than central to his occupation. 
The petitioner has referred to himself as an aviation consultant, but the record contains little information 
from the aviation industry to establish his direct contributions to that industry. The petitioner has 
prepared reports about air crashes and other disasters, but it is not clear whether these reports were 
commissioned or, rather, he prepared them on his own initiative. The record also does not indicate that 
the industry has adopted any recommendations he may have set forth in those reports. 
The petitioner's initial submission suggested avenues by which he could qualify for the waiver, but 
questions remained, and the petitioner declined to provide further evidence when given the opportunity 
to do so. He remains active in an unpaid capacity, but when confronted with the question of the 
suspension of his business, he once again failed to address the issue directly. Given these unresolved 
issues, we find that the petitioner has not met his burden of proof to establish eligibility for the national 
interest waiver. 
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 decision 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.