dismissed EB-2 NIW Case: Geology

(b)(6)
DATE: 
DEC 0 5 2013 
INRE : Petitjoner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
u.s •. Depiirtment of Homelant:l. security 
U.S. Citizenship and Immigrl!~ On Servi.:;es 
AdnririiSttative Appeals Office (AAO) 
20 MassachusettS Ave., ·N :w ., MS 2090 
Washington , DC 20529."2090 
U.S. ~itizenshlp 
and Immigration 
Services 
FILE: 
PETITION: Irin'iligtat1t Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability PursQ®t to Section 203(b )(2) of the Irtuniwation 
and Nationality Act, 8 U.S.C. § 1153(b)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative AppealS Office (AAO) in your case. 
This is a non•preced~nJ decision. The 1\AO does not announce new constructions .of law nor establish agency 
policy through non~precedent decisions. If you believe the MO incorrectly applied current law or policy to 
your case or if you seek to present new facts Jot considefl:ltion, you may file a motion to reconsider or a 
rnotion to reopen, respectively. Any motion must be filed on a Notice of Appeal of Motion (Fo®l .. 2901:3) 
Witnin 33 d.!!ys of the date of this decision. Please review the Form I-290B Instructions at 
http://www.uscis.gov/fornis for tile latest inrormation on fee, filing location, and other requirements. 
See also 8 C;F.R. § 103.5. Do not file a motion directly witll the AAO. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov . 
(b)(6)
NON-PRECEDENT DECISION 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the employment"'based immigrant visa 
pet.ition. The AAO dismissed the petitioner's appeal from that decision. The matter is now before the 
AAO on a motion to reopen. The AAO will grant the mqtjoh and affirm the denial of the petition. 
The petition~r filed the Form 1-140 petition on May 25, 2012, seeking classification under section 
203(b)(2) of the Immigration and Na.tion.'!.lity Act (the A.ct), 8 U.S.C. § 1153(b )(2), as an alien of 
exceptional ability in the scien~es. The petitioner seeks einployment as a geologist. Th~ petjticmer 
a,sserts that an ex~mpti.on from the requirement of a job offer, and thus of a labor certification, is in the 
national interest of the United St(!.tes. The director denie4 the petition on November 6, 2012, stating that 
the petitioner qualifies for claSsification as a.member of the professions holding an advanced degree, but 
tha~ the petitioner h'!.S not established that an exemption from the requirement of a job offer would be in 
the national interest of the United States. The petitjol)er hli<l established exceptional ability in the 
sciences, but did not establish eligibility for the waiver. The AAO dismissed the petitioner's appeal on 
April29, 2013. 
On motion, the petitioner submits a brief from counsel aild several supporting exhibits. 
A motion to reopen must state the ·hew facts to be . proved. in the reopel)ed proceeding and be 
Sl,lpported by affidavits or other documentary evidence. 8 C.F.R. § l03.5(a)(2). A motion to 
reconsider must st(!.te the reason~ for recol)si.deration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect applic(lti.on of law or USCiS 
policy. A motion to reconsider a decision ort an application ot petition must, when . filed~ also 
establish that the decision was incorrect based OI) the evidence of record at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). The petitioner specifies that the latest filing is '!.:motion to reopen, 
not a motion to reconsic;ler, but counsel's brief contains numerous allegations of prior error by the 
AAO, making the latest filing, in effect, amotion to reconsider, 
The USCIS re~latiol) at 8 C.F.R. § 103.3(a)(2)(vii) permits the petitioner to supplement an appeal 
after filing it, but there is no parallel provision for nwUon$ to reopen. The motion must, therefore, 
be complete at the time of filing. The petitioner filed a timely motion on May 28, 2013. 
Three months 1'!-ter, on August 26, 2013, the petitioner submitted four further witness letters dated 
between May 29, 2013 and A11gust 22, 2013.) two of the new letters are from the petitioner's 
former collaborators; the third is a follow-up letter from '!. professor who had 
submitted a letter previously; and the fourth letter is from the pastor of the p~titioner's church (and 
also an officiaJ of the parochial school attende4 by the petitioner's granddaughter). The .letters are 
not part of the motion; there is no provi.sjqn for a petitioner to nie a motion and then submit neW 
evidence at a later date. 
Section203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of fue Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
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Page 3 
NON-PRECEDENt DECISiON 
(A) ) In GeneraL - Visas shall be made available .. . to qlloalified immigr®ts who are 
members of the professions holding advanced degrees or their equivalent or who 
. bec~"tJse 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 busines~ 
are so~ght by an employe:r in the United States. 
(B) Waiver of Job Offer ~ 
(i) . . . the Attorney G{lneral may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) the3t 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 ill contention is whether the petitioner has established that a waiver of 
the job offer reqUirement, and thus a labor certification, is iii the n~tional interest. 
Neither the statute nor tbe pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest.'' The Committee on the 
Ju<iiciary merely noted in its report to the Senate that the comn1ittee had "focused on national interest by 
increasing the n1lll)ber and proportion of visas for imn1igrants who would benefit the United S~tes 
economically and othetwise .... " S. Rep . No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary in.form.ation to regulations implementing the Immigration Act ofl990, P.L. 101-649, 
104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897,60900 (Nov. 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] stan.dard 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. 
In te New York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act Assoc. Comm'r 1998) 
(NYSDOT), has set forth sevend 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 
substan.tial intrins.ic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. Finally, the petitioner seekil).g the waiver must establish that the alien will serve 
the nl3.tionl:ll interest to a substantially greater degree than would an c:J.Yailable U.S. worker having the 
sarhe minirtmm qlloalific~tions. /d. at 217-18. 
(b)(6)
NON-PRECEDENT DECISION 
P~g~4 
While the national interest waiver hinges on prospective national b~n~fit, the petitjoner must establish 
that the alien's past record justifies projections offutute benefit to the national interest. Jd. at ~19. The 
petitioner's assurance that the alien will, in the futute, serve the national interest ca.fiilot suffice to 
establish prospective nationai benefit Th~ term ''prospective" is included here to require futute 
contributions by the alien, rather than to f~cilitate the entry of an alien with no demonstrable prior 
achiev~ents, and whose benefit to the national interest would thus be enfuely specUlative. !d. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability'' as ''a, d~gree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
a1iens of exceptional ability are genera,lly subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
cl8.Ssitication as an alien of exceptional ability, or as a member of the professions holding ap 
advanced degree, that alien cannot qua,lify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encotifitered in his or her field of expertise. ·· · 
On motion, cotifisel states that the petitioner's previou~ evidence ~'demonstrated that the beneficiary 
is an individual with exceptional academic credentials with a 50 yea,r . track: record of 
accomplishments." Exceptional ability in the sciences is not grounds for the national interest waiver. 
Urtdet section 203(b)(2)(A) of the Act, ''irnmigrcmts ... who because of their exceptional ability in 
the sciences ... will substantially benefit prospectively the ... United St(lte.s" ge_nera,Uy must show 
that their "services in the sciences ... are sought by an employer in the United States." Und.er tbe 
plain wording of the statute, the petitioner mu~t do more than show that he possesses exceptional 
ability in the sciences, artd that his work will substantially benefit the United St;:tt~s. 
Coiiilsel states~: 
Using an American standard of review· it would be reasonable to include that a full 
professorship for a Doctor in 2 specific scientifjc endeavors Geology and Mineralogy 
are academic standards that represent one achieving the highe~t level or 
accomplishments in their particular field. Ii1 addition the Service has ignored anq 
failed to ~cknowledge ... his position of Head of Laboratory in the 
and his coveted position of the Chief of the 
----:::---~-.... 
· This accomplislunent a,s cioc~ented shouid 
be sufficient evidence for the Service to reasonably conclude that the persp~tive [sic] 
benefit to the US "national interest'' has been established by his exceptional ability; 3 
post graduate degrees that COililc;>te a levd of expertise significantly above that 
ordinarily encountered. 
I 
"[A] level of expertise significantly above that ordinarily encountered" is not grounds for apptov'irtg 
the waiver. The petitioner has not established that "a full professorship" .represepts ''the highest 
level of accomplishments in [his] particular field." The petitioner's previous positions of high rank 
iii what was then the Soviet Union do not establish his continued sta,ndil)g in the field or show that 
the petitioner has contin1,1ed to make significant contributions to that field. Counsel, on motion, cites 
(b)(6)
NON-PRECEDENT DECiSION 
Page 5 
no precedent decision or other authority to indicate that the petitioner p:res:U:rnptively qualifies for the 
wcriver on the ba~i~ ofholdiJ:tg .certain degrees or academic or professional titles. 
Counsel disputes the use of the adverb "strongly" in a prior decision, stating: "Thi.s ~lleged 
requirement exceeds tbe scope of the Service's authority sinc.e the standard 'strongly' 'is not 
articulated by law, statute, or precedent decision." The purpose of th~ present motion is to contest 
the I1lOSt recent deeision, specifically the AAO's dismissal notice from April 2013. That notice did 
not include the word "strongly" except in quoting the director's November 2012 denial notice. 
Dr. stated that the petitioner "is ~ weU-sl!ited 
candidate to serve as technical expert on complex problems in Geology." A mote forceful assertion 
comes from Dt. a chemist at the who claims 
that the petitioner "is the absolute leader in the field of forecasting and gold prospecting/' -
Counsel takes exception to an introductory passage from the distnissal notice: 
The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cartfiot suffice to establish prospective national · benefit. The 
intention behind the term "prospective" is to requite future contributions by the alic:m., 
rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thl!S be enti:n;~ly speculative. 
Counsel asserts that the petitioner did not rely solely on a ''subjective asstirartce" of futute benefit, 
l,Uld thC:lt it is a "disingenuous and a capricious insult to the benefici~'s record of achievements and 
accomplislunents over the past 50 years'' to state that he. "has rto demonstrable prior achievements.,;. 
Th'e qUoted paragraph serves as introductory lC:\IJ.guage; similar wording appears irtNYSDOT at page 
219. the dismissal notice contained rto assertion th~t the petitioner relied solely on '~subjective 
assurances" or had "no demonstrable prior achievements." That notice acknowledged nllffiero\ls 
evidentiary submissions, and stated tli_at tbe petitio:ner had satisfied the regulatory standard . at 8\ 
C.P.R. § 204.5(k)(3)(ii)(F), which concerns "[e]vidence of recognition for achievements ·and 
signiftccmt contributions to the industry or field by peers, govetninental entities, or professional or 
business organizations." 
The dismissal notice indicated that the petitioner had listed 88 of his scholarly works, but "did not 
S\lbroit ~opies of the published works themselves, or evidence of their p\lbljca~ion (such as indexes 
ot d.atabase printo\lts) .... Therefore, the list is not sufficient evidence of the pUblished wor~ or its 
impact." 
On motion; cooo.sel states that the AAO "incorrectly contends that the beneficiary has not st.Il~mitted 
corroborative primary evidence. This arbitrary concll!sion is not based on a realistic 'flexible' 
review and an~lysis of the documentation presented." Counsel does not specifically idemify C:\IJ.Y 
previously submitted exhibit th~t would refl!te the assertion quoted above. Instead, counsel asserts 
that n~w exhibits C, D, E, and F establish that the petitioner's "theories presente~ in the 'published' 
documentation [are] in use today, i11 the Russian Federation." 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Exhibit C is a photocopied document, "Methodology of forecasting and search m.ineral 
a.ccumulations." A legend at the bottom of its translated cover page that reads ' 
' The document itself, hqwever, does not look like a finished 
publication. Rather, it appears to be a typed manuscript It shows numerous handwritten 
annotations and occasional corrections and overtyped letters. 
The cover page identified two authors, the petitioner and Ex_hlbit D is an affidavit 
from the petitioner's spouse, which reads: 
I co-authored 
_ with [the petitioner], as published in 1988 are currently in u~e 
in the Russian Federation formerly the USSR. 
IIJ. almost every field of science to include dentistry, natural sciences, geology, 
chemistry; physics, metallurgy and medicine, the application of our reseat<:;h is 
ackno\Yledged. 
As a result of the r~search conducted by [the petitioner] and myself, it wa:s 
determined by the medical profession in Russia: tb.at the innovative theories could be 
used to treat specific "rare" diseases. The technology advance by [tb.e petitioner] and 
myself is C\liTently being used in Russia to treat "Sjogren's Syrtdtotne" as affittned by 
Dr. 
Signific~tly, a letter by Dr. 
application of our findings. 
The letter q11oted above claims a 1988 publication date for ' 
confirms the present day ·. 
" whereas the submitted manuscript shows the date "2008." Neither the 
manuscript nor letter is first-hand evidence of publication. The petitioner's 
previously submitted chronological Jist of claimed publications did not show any . publications 
a:ppea.ring in 1988 or 2008. The newly claimed title is not on the list. 
Exhibit E is the aforementioned letter from Professor 
The witness states that, while resea.rcb.ing the autoimmune disorder 
Sjogren's syndrome, she ''came across a computer forecasting system a.nd the search for 
mineralization" developed by the petitioner and his spouse~ Prof. states: "With the 
help of [the] computerprograms we've got very intere~ting results .... [A] [s]ystem created [to] find 
pa_tt~m~ in geology, was able to answer some questions of medicine." 
Exh~bit F on motion is from the petitioner's daughter, identified a.s "a lecturer at 
[several] " who stated: "In my lectures I used [the petitioner's] works, because 
he developed a system of methods applicable to almost any field of endeavor, such vast amounts of 
infottnation it can process.;, 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Exhibit F also includes a printout from a promotional web site for 
_ The page does not mention the petitioner or Pro£ and the 
petitioner has not otherwise explained its direct relevance to the motion. 
The above exb,ibit.s are not objective, independent evidence of published material by the petitioner~ 
Exhibit C is a manuscript in ail unfinished; unpublished state; exhibits D a,nd F are statements from 
the petitioner's own wife and daughter; and exhibit E does not mention any published work at all, 
referring instead to a ''computer forecasting system.'; the petitioner did submit evidence of the 
publication of but he does not cla,im to have written 
tha,t book. The information about the book does not indicate that geology or mineralogy had 
produced improvements in diagnosing or treating the disease. The petitioner's previous submissions 
said nothing about Sjogren's syndrome or any possible . medical applications of his work as a 
geologist. 
Counsel states that the petitioner had submitted a "documented li~?t of published scientific works," 
and ml,linta,i;nl? that the petitioner ''has published 88 scientific works.'' Counsel cites exhibit G, which 
is a copy of the previously submitted ·list of claimed publications. A list of claimed publications is 
not sufficient to establish the existence of those publications. Counsel ma,intains that the petitioner's 
list ofclaimed publications "is supported by the specifics enumerated in his documentation that ca,ri 
be verified by the Setvice" including "an affidavit by [the petitioner]." 
The non-existence or other unavailability of required evidence creates a presumption 
of ineligibility. If a required document, such as a birth or marriage certificate, does 
not exist or cannot be obtained, ail applicant or petitioner nuJst dernon:stra,te this and 
s_ubrnit secondary evidence, such as church or school records, pertinent to the facts at 
' issue. If secondary evidence also does not exist or cannot be obtained, the applicant 
or petitioner must demonstrate the unavailability of both the required document and 
relevant secQndilry evidence, and submit two or more affidavits, sworn to or affirmed 
by persons who are not parties to the petition who have direct personal knowledge of . 
the event and circumstances. · Secondary evidence must overcome the unavailability 
of primary evidence, and affidavits must overcome the unavailability ofboth primary 
and second(J,I)' evidence. 
8 C.P.R. § 103.2(b)(2)(i), In this instance, the pri,mary evidence would be copies of the published 
materials themselves. The petitioner has not submitted these materials or demonstrated that they are 
not available. Seconda,ry evidence could take' the form of doclirhentation from the publisher(s), 
indexes ot, bibliographies that identify the petitioner's published work, or catalogs listing the 
publi_cations. The petitioner has not submitted this. evidence either. Witness letters attesting, in 
general terrns, to the influential nature of the petitioner's published work cannot overcome the 
petitioner's failure to submit primary evidence regarding his claimed published work. 
ln a new affidavit,. the petitioner states tha~ aU 88 items on the previously submitted list ''Were 
'published.' ... My publications can be Verified by the index provided and by the ~orroborative 
(b)(6)
NON-PRECEDENT DECISION 
Pll.ge8 
attestations-by independent experts that are familiar with my research and publications.'' the list 
and witness letters are not first-hand evidence of publication. The petitioner; <;m mo~ion, submits 
photocopies of five book covers . and a partially translated photocoJ1y of ' 
_ a comb.:.bound voh.ifne bearing the date 2002 and the n.~e of _ 
a power engineering company in Russia. These materials help to establish the existence of ~oroe of 
the claimed public~tions, but not all of them. The petitioner ·did not explain why comparable 
evidence is not available for the majority of his claimed published works. 
The petitioner'~ - a,~sertion that all of the items on the 88-item list "were published" contradicts the list 
itself; which refers to several items (including the 200~ document) as ''manuscripts." 
Many transla,ted materi<1ls submitted on motion include translator certifications as required by the 
regulation at 8 C.F.R. § l03.2(b)(3). Lacking this certification is a translated letter from Dr~ 
which Dr. identified as "the leading research. in.stitute in Russia." 
Dr. ~aJ:tslated letter reads, in part: 
I)r. 
cooperates with [the petitioner] on a wide range of scientif.ic problems of 
geological [.,Yic] ,:nore than 20 years. In 1990, on his initiative and Onder his 
leadership started work on ~he manufacturing application of 
mathematical modeling of the gold, to create data banks and the predjction system of 
ore and placer gold deposits. 
Computer methods of modeling and data processing at the institute eventually 
improved in accordance with the new computet technologies, but they are based on 
· ideas · proposed [by the pe~itioner]. The forecasting system ha8 bec.oine fittnly 
established in the fields of work and its effectiveness is proven by time .... 
The system of forecasting and e'.(ploratory research ... created by [the petitioner] and 
I. Tyutyavina significantly improves the efficiency of detection of gold objects .... 
Since 2006, [the petitioner] led himself and was directly involved in the re-evaJuation 
of gold.,bea.ring area~ in the drafting forecast maps in ateas ofthe 
Irkutsk region. He marked a number of promising new areas. In 2007--2009 [the 
petitioner] together with geologists of the Geological Department of the Irkutsk 
perfonn:ed expioration work within several selected (by the technique) promil:ling 
areas. Two ofthe:rn were placed for exploration. 
director of the <1t ~he Russian 
Academy of Sciences, . states that some of the petitioner's research concerned volcanoes, but "the 
main focus" was ''the study of gold content oil the_ shelves of the Northern and far Eastern seas." 
The dismissal notice indicated that the petitioner initially based the petition on an intention to seek 
phosphate deposit_s in Floriqa ; and later claimed · an intention to look for gold and_ hydrocarbons 
(b)(6)
NON-PRECEDENT DECISION 
P~ge9 
elsewhere in the United States. This change of emphasis does not establish that the petition was 
approvable at the time of its filing. 
Counsel, on motion, states that the AAO is being ''inflexible" and "completely miss~d the point of 
the submission of the· 'Gold Rush' article." Cou:nsel then states: 
If [the petitioner] is an accomplished ind.iyidual of exceptional ability as 
acknowledged by the Serv-ice and if he is dealing in an area of intrinsic merit ~s 
previously acknowledged by the Service, then one must conclude that [the petitioner] 
can prospectively benefit the national intere~t as a whole by implementing his , 
theories for gold extraction well into the future. 
Under section 203(b )(2)(A) of the Act, every alien of exceptional abUity is presumed to offer 
prospective benefit to the United States. That prospective national benefit, howev(!~, is not sufficient 
to exempt those individuals from the job offer requirement that appears in the same statutory cla'l,l;~e ; 
Exceptional ability Is not presumptive or automatfc groWids for the national Interest waiver. 
Elsewhere on motion, cou11sel states: ''The Service incorrectly and capriciously .. abus.ed its discretio~ 
by stating that the 'intrinsic merit' guideline relates to the pet_itioner' s occupation rather than that the 
petitiom~r's individuall¥ [sic], and is only one of several criteria that the petitioner m\lst satisfy in 
otder to qualify for a w;,river.". Counsel offers no supp.ort for this reading of the "intrinsic merit" 
guidellne, and a review of the NYSDOT decision refiit~~ it. The relevant portion of that decision 
reads: ''Several factors must be considered when evaluating a request for a national interest waiver. 
Fitst, it must be shown th~t the alien. seeks employment in an area ofsubstantial intrinsic merit. This 
beneficiary's field of endeavor, engineering of bridges, clearly satisfies this first threshold." /d. at 
Z17. Thus, "intrinsic merit" is indeed olie of "[s]evetal factors." In discussing the ben~fici~ in 
NYSDOT, it was the "beneficiary's field of endeavor," not the beneficiary individually, who "clearly 
satisfies this ... threshold." 
Counsel states that the dismissal notice "erroneously and incorrectly raised the specious issue that 
the record does not show any employer in the hydrocarbon industry has expressed an interest in 
employing the petitioner ' in that capacity. This is an abuse of discretion since the Service raised an 
issue that is tote~,lly i.rrelevant to the issue presented." The petitioner filing a petition originally based 
specifically on phosphate prospecting, and later, in response to the July 2012 request for evidence, 
submitted evidence regarding hydrocarbons. To note this significant shift in emphasis after the 
initial filing is not "totally irrelevant to the issue presented." 
.. \ 
Retuniing to the offer to prospect for phosphate at a site 61-Vned by _ _ _ 
in Florida, counsel states that the petitioner, "upon[] the conc}l..tsion of his survey is qualified to inake 
a professional recommendation as to the mining and extracting process with a minimum impact o~ 
the environment. . . . [The petitioner's] erudite understanding of pollution control and its 
environmenta_l impact was the primary reason for his selection by to survey the 
aforementioned property." There has been no finding that the petitioner lacks the competence or 
(b)(6)
NON-PRECEDENT DECISION 
, Page 10 
qualifications to survey the site; USCIS acknowledged his exceptional ability a,s a geologist. 
Exceptional ability, however, is not sufficient to establish eligibility for the waiver. 
Th~ dismissal notice contained the following passage: "[panileg~l did not explain 
how this feasibility study would benefit the United States economy. Ms. earlier predictions 
of future economic benefit from phosphate recovery rely on the still 1mproven presumption that 
those deposits exist." On motion, counsel states: "North Florida has one of the largest deposits of 
phosphate in the US. For the Service to suggest that the survey of1800 acres in 
FL is an unproven preswnption is a contradiction of published scientific fac:t." Counsel asserts that 
the conclusions in the dismissal notice amount to ~ '"infle~ible; analysis'' of the record. The 
pet_itioner submits materials on motion showing the existence of significant phosphate 4ep<;>sits in 
northern Florida. The dismissal notice did not deny the. existence of phosphate deposits in northern' 
Florida. Rather, it referred to the presence of such deposits on lot as "unproven." The job 
offer letter fro:r_n ·resubmitted on motion, specifically asked the petitioner to "determine if 
there are sufficient phosphate reserves to justify the implementation of a recovery facility." 
The petitioner did not claim any work experience in the thtee years preceding the filing of the 
petition, instead describing himself as ~·retired,'; and his list of claimed articles included only one 
entry after 1989, Specifically a manuscript from 2002, On motion, counsel states: 
Age discrimination is not tolerated under federal and state law .... 
In addition; the mere; fact that [the petitioner] has been "retired" for the past 3 years 
does not preclude his ability to continue with his research and to consult with US 
companies in his areas of expertise . 
. . . For the Service to raise an issue about [the petitioner's] age or retirement is 
. unjustified, unreasonable, and beyond the scope of its authority. 
The petitioner's age or retirement do not suggest his lack of ability to contribute in the future. It 
remains, however, that the petitioner did not establish a,ny ongoing activity at the time he filed the 
petition. The assertion that the petitioner remains able ''to consult with US companies'' demonstrates 
his desire for employment, but not the deSire of those companies to employ him. A single offer of 
short:-term contracting work seeking phosphate deposits for does not establish that the 
petitioner has significant, realistic prospects to find gold and extract petroleum from shale in the 
United States. . 
The petitioner's list of claimed articles stops at 2002. letter indicates that the 
petitioner ''was engaged in the analysis of field dat.a. Unfortm:tately, these studies were 
interrupted. But we very much look forward to the new inonogtaph, which [the petitioner] plans to 
complete in 2014." The 
record does not reveal what interrupted the petitioner's preViously 
unmentioned ongoing studies. As noted before, the petitioner himself ~ttributed his recent inactivity 
to retirement. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
Comparing t~e petitioner's work to Albert Einstein's 1915 publication of the theory of generaJ 
relativity, coun.sel asserts that the petitioner's work remains in use today. The record does not 
establish that the petitioner's work from decades ago remains in use despite advances in his field, or 
that geologists in the United States ha:ve used, ot plan to use, the petition~r's work. 
Counsel states: 
Counsel suggests th~t the adjudicator in this matter consult with a: qualified PHD with 
a degree irt Geology and Mineralogy in or<ier to determine the viability and 
significance of [the petitioner's] findings .... 
The beneficiary ... has specifically requ~sted. il certified copy of the adjudicator's 
cre<ientials as it relates to his or her qualifications to evaluate a publish® manuscript 
dealing With a specific process for extracting oil and gas from shale. Beneficiary 
respectfully submits that the adjudicator is not qualified to evaluate the. scientific 
signific~ce and the potential benefit to the US economy as a whole without an 
advanced degree in Geology @cl Mineralogy. 
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, § 13.61; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). When the petitioner first filed the petition, he did not inqicate that he would. serve the 
national interest by "extr;;tCting oil and gas from shale." The basis for the initial w~ver requ~st was ''his 
offer of employment . . . to conduct a feasibility ~dy on an 1,800 acre track [sic] of land in 
," which "will result in significant job creation in . FL." Neither the 
petition, response to the request for evidence, appeal, or motion demonstrate that the petroleum and gas 
industry in the United States has taken notice of th.~ petitioner's work or expressed an intention of using 
either his personal services or the methods described in his manuscript. 
the new evidence submitted on motion does not establish eligibility ·for the national interest waiver; 
CoU11$ei's ~ertions do not show that the prior dismissal notice was based on an incorrect application of 
law or USCIS policy, or that the decision was incorreCt ba5ed oil the evidence of record ai the time of 
the initial decision. Here, the petitioner has not met that burden. The AAO will, therefore, !Ul'illil the 
denial of the petition. 
ORDER: The denial of the petition is affirmed.