dismissed EB-2 NIW Case: Geology

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DATE:NAY 0 6 ~014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin gton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
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-precedent decisions . If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present 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:/Jwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
JRonRosen 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. We dismissed the petitioner's appeal from that decision. We subsequently reopened the 
proceeding on the petitioner's motion and affirmed the denial of the petition. The matter is now before 
us on a second motion to reopen. We will grant the motion and affirm the denial of the petition. 
The petitioner filed Form 1-140, Immigrant Petition for Alien Worker, on May 25, 2012, seeking 
classification under section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2), as an alien of exceptional ability in the sciences. The petitioner seeks employment as a 
geologist. 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 
November 6, 2012, stating 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. We issued our first 
decision on April29
, 2013, and our second decision on December 5, 2013. 
On motion, the petitioner submits a brief and "voluminous new documentation." 
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. 
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, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
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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. 
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. 
The USCIS regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, 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 first substantive assertion on motion is that the petitioner "has 
machinery (patent pending) for the production of oil, and gas from 
coQ_y, in Russian with an English translation, of~===------"'== 
developed a technology and 
(Exhibit I)." Exhibit I is a 
Although the 
petitioner descrioeCl it as "new evidence," this same document accompamed tne pnor motion. The 
record does not include any evidence that the method described in the booklet has entered practical 
use anywhere in the years after the booklet's publication in The petitioner asserts:· "the U.S. 
can be energy independent by mining the enormous in the U.S.," through 
implementation of his "(patent pending) innovation." This assertion rests on speculation regarding 
the future adoption of the petitioner's invention, as well as the implied claim that oil will 
remain inaccessible without that invention. 
The brief on motion contains the following passage: 
Counsel, on behalf of alien, references the dramatic increase in the price of gold 
world-wide .... This renewed interest by the U.S. Government and private businesses 
in gold mining and prospecting gives rise to the use of [the 
petitioner's] Patent Pending invention. The utilization and implementation [of] this 
revolutionary method of extracting without the disastrous harm to the 
environment is certainly in the national interest. 
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. . . [The petitioner] can make a significant contribution to the entire science of 
mineral prospecting in the U.S. by implementing his invention 
The brief refers to the petitioner's method and as "patent 
pending," but the petitioner submits no evidence on motion to show that he filed for patents, and 
does not identify the country or countries where the patent applications are said to be pending. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner submits a copy of a "Receipt for Payment Tendered ," showing that the petitioner paid 
a patent attorney a retainer on November 10, 2013, for a patent search. The receipt states: "Upon 
completion of the Patent search documentation will be submitted for a Patent Application." The 
receipt does not specify the nature of the patent application to be filed. This document does not 
establish that the petitioner has applied for any patents in any jurisdiction. Rather, it indicates that, 
nearly 18 months after the petition's filing date, an unspecified patent application by the petitioner 
had yet to be filed. 
Our April 2013 dismissal notice contained the following passage, which is relevant in the context of 
the above discussion: 
The appeal includes a December 4, 2012 letter from the petitioner to a patent 
attorney, indicating that the petitioner has "developed a completed self-contained 
system for obtaining a synthetic analysis of oil and gas by a special process [he] 
invented." The system is 
the 'mentioned in the petitioner ' s affidavit. 
The petitioner contends that this "invention is of international significance since it is 
the new technology for extracting oil and gas from rock, with a minimal impact 
on the environment." The record does not indicate that the is in use 
anywhere. The petitioner only began seeking a patent more than six months after the 
filing date, which suggests that the innovation has not advanced beyond the planning 
stages. 
The brief also indicates that the petitioner 
"has been a pioneer in the science of pollution control and 
the effects of climate change on our environment. Evidence is presented to establish that [the 
petitioner] has conducted research and has also developed several methods to address these issues 
(Exhibit III)." The brief does not identify Exhibit III. Sequentially, the third exhibit in the motion, 
as it is now constituted, is a group of photographs with an explanatory statement that begins: 
"Description of the attached photos and the explanation of the new environmentally friendly method 
of thin/fine extraction. " The statement indicated that the petitioner's "developed methods use 
special, non-gravitational processes, which are completely harmless to the environment," whereas 
"the method of ' for extraction ... uses very toxic solutions, such as mercury." 
This material discusses pollution in the narrow context of extraction, but does not address "the 
effects of climate change on our environment." 
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The petitioner states that he "was responsible for reviewing the work of other scientists in his 
position as Head of the Central Institute of in Moscow. Based on his 
evaluation, fellow scientists were able to produce significant innovations in prospecting and for 
other precious and semi-precious metals (Exhibit IV)." The fourth exhibit on motion is a partial 
copy of a Russian-language book from 1986, with the title page translated as 
The petitioner's name is not on the 
document. The petitioner has not established the book's relevance to the claims made on motion. 
The petitioner states that he 
was a member of the of Kazahk, USSR. This highly esteemed 
position is evidence of one who has attained the highest level of accomplishments in 
his field .... This designation also resulted in the recognition of full professorship in 
his teaching and lectures throughout the USSR. Prior to the collapse of the Soviet 
Union, [the petitioner] was actively involved in several new research projects and he 
continued to produce several significant theoretical applications in Geology for the 
as Chief of the 
The December 2013 motion decision acknowledged the discussion of the petitioner's _academic 
background and employment history, and included this statement: 
The petitioner's previous positions of high rank in what was then the Soviet Union do 
not establish his continued standing in the field or show that the petitioner has 
continued to make significant contributions to that field. Counsel, on motion, cites no 
precedent decision or other authority to indicate that the petitioner presumptively 
qualifies for the waiver on the basis of holding certain degrees or academic or 
professional titles. 
The petitioner submits a printout from the web site of the "the global network of science 
academies, " describing 
the as "the highest scientific institution in 
Russia ," and stating: "Academy members and researchers from its institutes are in demand as top 
scientific experts by the industry and the business community." The petitioner does not explain how 
this document bears on his claim of membership in the of the 
Republic of Kazakhstan; the two organizations are separate entities. 
The petitioner submits copies of several letters that he had submitted previously. Discussion of these 
letters appeared in earlier appellate decisions, and the petitioner, on motion, does not explain how 
that discussion was deficient. 
The April 2013 appellate decision included this passage: 
The petitioner also submitted a list of 88 "scientific works" he claimed to have 
written between 1963 and 2002, with 66 described as "printed ," 21 described as 
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"manuscript " and one (from 1976) described as "published." ... The petitioner did 
not submit copies of the published works themselves, or evidence of their publication 
(such as indexes or database printouts). 
The December 2013 motion decision acknowledged the petitioner's claim to have "published 88 
scientific works," but included the finding that the petitioner's own list of claimed publications is not 
sufficient evidence to establish that the claimed publications exist. On motion, the petitioner states: 
"As a very practical matter , it would be unrealistic if not impossible to submit all or part of the 88 
published scholarly articles with this petition," because "[ s ]everal of his published works are still 
classified as 'Secret ,"' and the cost of translating the available articles "would be prohibitive." 
Evidence of publication need not include complete translations of all 88 claimed works. 
The petitioner, on motion, takes exception to our description of one of the petitioner's claimed 
publications, stating that he 
did submit a published document: 
translated. The Service in its abuse of discretion clatmed , .. the 
document itself however , does not look like a finished publication." The Service did 
not have a reasonable- basis for its determination, since the scientific works published 
within the Soviet Union were classified 'Secret' and not for the general public. The 
issue of publication does not rest on its binding, but rather on its contents. This 
particular publication was available to the scientific community and not for the 
general public." 
The petitioner had not previously claimed that the document was "classified 'Secret"' 
by "the Soviet Union." From the December 2013 motion decision: 
Exhibit C is a photocopied document, of forecasting and search 
mineral accumulations." A legend at the bottom of its translated cover page ... reads 
J 2008." The document itself, however , 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 Soviet Union dissolved in 1991, many years before the stated publication date of 2008. 
Elsewhere on motion, the petitioner claims that the document was "published" as a 
"research article," and the document itself contains a reference to a "Publishing House. " Thus, the 
petitioner has put forth two contradictory claims: the paper is a classif ied secret 
document, but it is also a published research article. The petitioner, furthermore, has submitted 
several complete copies of the document, none of them bearing any evident markings 
of a classified document. 
With respect to the assertion that USCIS "did not have a reasonable basis for its determination " that 
the document resembles a manuscript rather than "a finished publication ," the 
appellate decision explained the factors leading to the conclusion that the document has the 
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Page 7 
appearance of a marked-up draft. The petitioner submits nothing from the to 
confirm that the publisher accepted, published, and distributed the document in the state shown in 
the record; the assertion that users adjudicators lack expertise in the Russian publishing industry is 
not a sufficient rebuttal to the stated findings. 
The petitioner, on motion, states that his "significant contributions 
include 88 published research 
papers and more than 300 co-authored articles on gold and silver prospecting." Throughout this 
proceeding, the issue has not been simply that the petitioner claimed 88 publications but did not 
adequately document all 88 of them. Rather, that particular issue was part of a larger pattern of the 
evidence failing to fully support the petitioner's claims, as well as the sometimes conflicting nature 
of those claims. 
The claim of "more than 300 co-authored articles on gold and silver prospecting " did not appear in 
the statement that accompanied the initial filing of the petition; that statement instead indicated that 
the petitioner "has authored more than 88 scientific publications." The petitioner's latest motion 
includes some evidence of individual prior publications, but the petitioner's statement on motion 
cites no evidentiary exhibit to support the new claim of "more than 300 co-authored articles." 
The petitioner submits new affidavits from himself and from his spouse, stating 
that the two "have co-authored more than 300 scientific research papers." The petitioner asserts: 
"An affidavit is a verifiable statement by the affiant that is made under penalty of perjury and 
therefore considered valid." The regulation at 8 e.F.R. § 103.2(b)(2)(i) limits the circumstances 
under which users will accept affidavits in place of primary evidence: 
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, an applicant or petitioner must demonstrate this and 
submit 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 secondary 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 of both primary 
and secondary evidence. 
Three new letters refer to the petitioner 's efforts, including his published work. Dr. 
of Florida, stated: 
I have known [the petitioner] since 1975. We have collaborated on a project 
regarding an extraction and mining accompanied with furthe 
Our goal was to produce alloys of special advanced 
properties. The methods and technologies that we used are still being used today in 
Russia at the same region on the same deposits. 
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With an excellent balance between fundamental and applied kllowledge in scientific 
and engineering areas, [the petitioner] regularly 
demonstrated creativity in problem 
solving situations. 
He has co-authored a published paper _ - quantitative production of 
endogenous mineralization. His work in analog computerization is in use today in the 
scientific community. I have also referenced his work in several of my research 
papers in metallurgy. 
The record does not include copies of Dr own published work, with references to the 
petitioner's claimed publications, or any other documentary evidence that the petitioner's "methods 
and technologies .. . are still being used today." 
In a translated letter, Dr. "Academician of the 
states that he and the petitioner "worked in the same institute from 1982 to 
1991," and that he and the petitioner have often collaborated since 2006. Dr. states that 
the petitioner "created and developed a methodology for predicting and identifying deposits (gold, in 
the first place)," and he "describe[s] just one section of [the petitioner's] forecasting methodology" 
in technical detail, stating that the petitioner "and colleagues developed an algorithm of hierarchical 
taxonomy." 
a consulting geologist based in Denver, Colorado, who has "known [the petitioner] 
since the early 1980s," states: , 
[The petitioner] is considered one of the foremost authorities in the development and 
implementation of advanced methods for tb e mPtir::~l nrnsnf'.rtino-fofl o-nlrl rlennsits in 
the former Soviet Union .... His book 
- had 12 editions and has been widely 
used by scientists and field geologists. _ .. 
I know that [the petitioner] is working now on a comprehensive summary of his 
previous studies of Russian and methods of their theoretical 
prospecting. The introduction if this study into the literature of the could 
make a major contribution toward future mineral exploration in the United States. 
USCIS has not denied that the petitioner has had a long and productive career. The issue lay in 
prospective (future) benefit to the United States. The petitioner's most thorough documentation 
dates from the 1970s and 1980s, signaling reduced work by the petitioner in subsequent years. The 
original premise for the national interest waiver was a specific offer to prospect for phosphate on a 
particular tract of land in Florida. The petitioner has effectively abandoned this initial claim, not 
mentioning it on motion. The petitioner has subsequently asserted that he will engage in future 
activities such as gold prospecting and oil refining, without establishing that he has realistic 
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Page 9 
prospects of conducting those activities in the United States. Rather than submit existing evidence 
of recent activity, the petitioner has created new evidence (such as the evidence from late 2012 and 
late 2013 showing that the petitioner has made inquiries into patenting one of his claimed 
inventions). 
Another of the petitioner's post-filing claims concerns medical research. The petitioner states: "The 
U.S. economy will also benefit from [the petitioner's] research regarding dental treatment and a cure 
for Sjogren's Syndrome," but the record does not show that "a cure for Sjogren's Syndrome" has 
been discovered, or that the petitioner's work has pointed the way to such a cure. The petitioner 
maintains that his "work as published in concerning Sjogren's Syndrome is 
an advance in diagnosing and treating the disease." The petitioner is not a medical researcher, and 
has not worked with Sjogren's Syndrome (an autoimmune disease affecting the glands that produce 
tears and saliva). 
The petitioner did not mention Sjogren's Syndrome until the first motion to reopen, at which time he 
submitted a letter from a professor at a Moscow medical school, who stated that she adapted "a 
computer forecasting system" 
developed by the petitioner and his spouse for use in her own research 
on Sjogren's Syndrome. The December 2013 decision had indicated that the petitioner had 
submitted evidence of the publication of but that the 
submitted evidence "does not indicate that geology or mineralogy had produced improvements in 
diagnosing or treating the disease." The petitioner, on motion, repeats the core claim but does not 
address any of the points raised in the December 2013 motion decision. 
The petitioner lists various appellate decisions approving national interest waivers, and the petitioner 
claims to be more highly qualified than the individuals who had received those waivers. The cited 
decisions are not binding precedent decisions under 8 C.F.R. § 103.3(c), and the petitioner submits 
no evidence to establish that the favorable factors in his own case equal or exceed those in the cited 
decisions. 
Much of the evidence described as "new" actually duplicates prior submissions, and the new 
evidence does not address sigfiificant issues raised in prior decisions. At the outset of the 
proceeding, the petitioner described himself as "retired," claimed no published work after ·2002, and 
based the waiver claim on an offer to prospect for phosphate. The petitioner's claims have 
subsequently evolved, but the petitioner has not shown that he was eligible for the benefit sought at 
the time of filing and remains eligible now, as required by the regulation at 8 C.F.R. § 103.2(b )(1). 
The petitioner, on motion, has not established that USCIS should have approved the petition, or that 
new facts warrant an approval now. 
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 denial of the petition is affirmed.