dismissed EB-2 NIW Case: Geology

(b)(6)
OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
[J;s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and. Immigration 
Services 
FTT.F: 
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 in your case. All of the documents 
related to this matter have been returned to the office that onginally decided your case. Please be advised that 
any further inquiry that you. might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion; with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. ·Please be aware that 8·C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision th11t the motion seeks to reconsider ot reopen. 
Thank you, 
~RonRosen • 
/ Acting 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 matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
· dismiss the appeal. · 
The petitioner seeks classification under sectioq 203(b)(2) ofthe 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 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. 
On appeal; the petitioner submits a brief from counsel and several supporting exhibits. 
Before addressing the merits of the petition, the AAO will address a procedural issue that counsel raises 
on appeal. Counsel states: "a Notice of Intent to Deny should have been issued before the denial was 
rendered," and that issuance of such notices ought to be standard operating procedure for U.S. 
Citizenship and Immigration Services (USCIS). The USCIS regulation at 8 C.F.R. § 103.2(b)(8)(iii) 
allows the issuance of riotices of intent to deny, but does not req~e them. The regulation states only 
that USCIS "may" issue such 
notices, thus leaving the matter to the director's discretion. Furthermore, 
as discussed below, the director did issue a request for evidence (RFE), thereby serving notice that the 
petitioner's initial submission was deficient. 
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 petitioner claims eligibility for classification as an alien of exceptional ability in the sciences. The 
director concluded that the petitioner qualifies as .a member of the professions holding an advanced 
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degree because his occupation requires at least a bachelor's degree and because ht: has documented 
several post-baccalaureate degrees. The petitioner has also· submitted sufficient evidence to support the 
original claim of exceptional ability in the sciences, by establishing education, experience and 
recognition that satisfy the regulatory standards at, respectively, 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (B) and 
(F). Therefore, the petitioner qualifies for the underlying immigrant classification. The denial concerns 
not the classification itself, but the additional benefit that the petitioner seeks. That benefit is a waiver 
of the job offer requirement, and thus a labor certification, in the national interest. 
Neither the statute nor the pertinent regulations defme 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, published at 
56 Fed. Reg. 60897, 60900 
(November 29, 1991), states: 
The Service [now US CIS] 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 Dept. of Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
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. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is 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. 
The AAO also notes that the USCIS regulation at 8 C.F.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, 
whether a given alien seeks classification as an alien of exceptional ability, or as a member of the 
I 
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professions holding an a.dvanced degree, that 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 Form I-140 petition on May 25, 2012. The petitioner stated that the position 
is new, temporary, and oavs $73.050 per year. In a statement that accompanied the initial filing of 
the petition, paralegal stated: 
[The petitioner] exceeds the standard by meeting four (4) factors set forth [in the 
USCIS regulations at 8 C.F.R.] § 204.5(k)(3)(ii). In addition, he ineets the legacy 
INS's waiver threshold and meets four (4) of the PRE-NYSDOT factors. Specifically 
(1) he has a degree relating to the area of exceptional ability, (2) he has 
documentation establishing at least 10 years of experience in the area of exceptional 
ability, (3) he is a member in good standing of a professional association related to 
the field of exceptional ability, and (4) he has been recognized by his peers for his 
achievements in the field of Geology and Mineralogy. 
Ms. did not identitY the "four ... PRE-NYSDOT factors" that the petitioner claims to meet. 
The four numbered elements listed above are all regulatory criteria for exceptional ability under. 
8 C.F.R. § 204.5(k)(3)(ii), and exceptional ability does not establish eligibility for the national 
interest 
waiver. Furthermore, NYSDOT is a binding precedent decision, and therefore supersedes 
any informal guidelines that legacy INS (Immigration and Naturalization Service) may have used 
p~ior to its publication in 1998. , 
Ms. stated: 
[The petitioner] is the recipient of an internationally recognized award from the 
Academy of Science. He has authored more than 88 scientific publications. 
Throughout his f career. ofl 50 vears he develooed and oublished a " 
" His work has been 
accredited as being evidence of an oricinal scientific achievement of major 
significance and is in use today in the : m 
Russia .... 
The scope of [the petitioner's] research and scientific findings will substantially 
benefit the US economy in the immediate future. This fact is obviated [sic] by his 
offer of employment (subject to approval of his NIW) to conduct a feasibility study 
on an 1,800 acre track [sic] of land in North Central Florida. The area in question has 
one of the highest concentrations of phosphate in the United States. In today's 
technologically advanced economy phosphate is used in agriculture, manufacturing, 
and in scientific research. The feasibility [study that the petitioner] will perform will 
have a significant and immediate impact of [sic] the employment factor in the area. 
[The petitioner] has distinguished himself. as an authority and expert in the field of 
Geology and .Mineralogy. His resume, . education, experience and prolific 
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publications attest to his prominence in his field. His future contribution to the 
Science of Geology and Mineralogy will have a profound impact on the US economy 
~nd will also result in significant job creation in FL, which has the 
highest unemployment rate in the State of Florida and in the continental United 
States. [The petitioner's] research has focused on improving the environment and 
making productive use of natural resources. 
The petitioner's initial submission did not identify the prospective employer mentioned above, 
althou$, on Form 1-140, the petitioner indicated that he intended to work at 
Florida. 
The petitioner submitted an uncertified ETA Form 9089 Application for Permanent Employment 
Certification, as required by the USCIS regulation at 8 C.P.R. § 204.5(k)(4)(ii). Section K, Alien 
Work Experience, begins with the instruction to "[l]ist all jobs the alien has held during the past 3 
years. Also list any other experience that qualifies the alien for the job opportunity." The petitioner 
left this section blank. Form G-325A, Biographic Information, submitted at the same time as the 
petition, indicates that the petitioner retired in 2009 at the age of 71, and has since been unemployed. 
The petitioner submitted documentation of the petitioner's employment in the field of geology in 
. Russia, both during and after the Soviet era. 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 "manuscript"and one (from 1976) described as "published."1 The only entry on the list 
· dated after 1989 was a 2002 manuscript entitled " 
" The petitioner did not 
submit copies of the published works themselves, or evidence of their publication (such as indexes 
or database printouts). 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 of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). Therefore, the list is not sufficient evidence ofthe published work or its impact. 
Copies of "orders" from various government bodies in the Union of Soviet Socialist Republics 
(USSR) and; later, Russia, expressing approval and gratitude for various reports that the petitioner 
prepared .. One translated· document reads, in part: 
Scientific and Technical Council (NTS) at its meeting considered the RESULTS of 
application of " 
l," presented by the developers - [the petitioner] and [the petitioner's 
spouse] and by the executors of works in gold-bearing region, 
in the , in the etc., reviews of various 
organizations, estimations of experts, of representatives of industrial organizations. 
1 The Russian-language original document did not distinguish between the items listed as "printed" and the one listed as 
"published," showing the 
abbreviation "neq.'' for each. 
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NTS notes: 
- Expert opinions are almost unanimous - the approach itself is· novel and the results 
obtained by the authors using the established bank of gold deposits, are very 
convincing and could not be obtained by any other method, they require extensive use 
in practice of forecasting and estimation of territories on the possible detection of 
gold mineralization; 
- It is necessary to note high efficiency with respect to cost and time, which 
distinguishes the developed system. 
On July 18, 2012, the director issued a request for evidence (RFE), instructing the petitioner to 
"establish that the beneficiary has a past record of specific prior achievement with some degree of 
influence on the field as a whole" that would "justify projections of future benefit to the national 
_interest." The. director acknowledged that "[t]he petitioner has demonstrated significant training, 
experience and potential expertise as a Geologist," but found that the petitioner had not shown the 
impact or influence of the petitioner's past work. 
In response, Ms. asserted that the petitioner had previously submitted "documentary evidence 
of [the petitioner's] widespread acclaim, expertise, experience and significant training in the field of 
Geology and Mineralogy." The petitioner's prior submissions (resubmitted in response to the RFE) 
contained a series of claims, but the actual evidence only partially supported those claims. For 
example, as previously observed, a list of publications is not.documentary evidence of publication. 
It is, rather, a claim to that effect. Even then, the petitioner claimed to have produced only one paper 
in the last 20 years, and even then referred to it as a "manuscript" rather than a published work made 
available to others in the field. 
Submitted council reports acknowledged the petitioner's work for various government entities, but 
did not show how the petitioner's work stands apart from that of other qualified geologists working 
for such agencies. The petitioner did not show that the submitted letters amounted to significant 
recognition rather than routine acknowledgment of work satisfactorily performed. 
Ms. stated that the petitioner has "clearly established" that "[h]is unique skills would benefit 
the US by providing a method of making more productive use of our national resources that will 
have a significant impact on improving our environment." Ms. did not explain how the prior 
submissions supported this claim. Ms. quoted the NTS document regarding the petitioner's 
" ,"· but the petitioner 
submitted no evidence to show that the petitioner's method is in widespread use or has had "a 
significant impact on improving our environment." Simply being a competent and experienced 
geologist·is not enough to warrant the national interest wai"er, and the petitioner cannot establish the 
significance of his past work simply by identifying it. 
Ms. stated that the petitioner's "offer of employment to survey 1,800 acres in Northern 
Florida is definitive proof that his future contribution to the United States economy will substantially 
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outweigh any inherent national interest in protecting US workers through the cumbersome and time 
consuming labor certification."· Ms. did not explain this conclusion. There· is nothing 
intrinsic to an "offer of employment" to show eligibility for the waiver . . 
The petitioner submitted a co y of an April 20, 2012 letter from ----
financial officer of . Mr. stated: 
We have 1,800 acres under contract in Florida .... 
We would like you to survey our property and conduct comprehensive feasibility 
study as to the geological composition of our 1,800 acres to determine if there are 
sufficient phosphate reserves to Justify the implementation of a recovery facility. 
, chief 
Ms. • 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 
unproven presumption that those deposits exist. 
Ms. stated: "[a] recent article in the Smithsonian confirms that the 'gold rush' days have 
returned to California. Since [the petitioner's] research and studies have concentrated on precious 
metals and mineralogy, his talents and expertise are evidence of his potential contribution to the US 
economy." This assertion speaks to the intrinsic merit of the petitioner's profession, which the 
director had not disputed. Ms. provided no direct link between the petitioner's "offer of 
employment to survey 1,800 acres in Northern Florida" in search of phosphate deposits and the new 
"gold rush" in California. 
Furthermore, the petitioner's initial submission gave no indication of the petitioner's intention to 
look for gold in California .or elsewhere in the United States. A petitioner may not make material 
changes to a petition that has already been filed in an effort to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which require that beneficiaries 
seeking employment-based immigrant classification must possess the necessary qualifications as of 
the filing date of the visa petition. 
The petitioner submitted a letter from of the. l , who 
"reviewed the [petitioner's] CurriculumVitae" and commented on it. did not claim any. 
independent knowledge of the petitioner's work. · noted the petitioner's "recent 
. experience in hydrocarbon exploration from shale bodies," but the record does not show that any 
employer in the hydrocarbon industry has expressed an interest in employing the petitioner in that 
capacity. 
asserted that "much of [the petitioner's] work will remain classified," but what is 
available "show[ s] a wide range of expertise" and "a wide breadth and depth of experience in the 
mining industry (which] solidifies his reputation as a significant scientific contributor to the 
disciplines of Geology and. Mineralogy." Any work that remains classified in another country would 
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appear to be unavailable for use by entities in the United States, and therefore will not prospectively 
benefit the United States. 
A printout from web page did not indicate that his research interests overlap with those 
of the petitioner. Instead, the page stated: 
Our research is focused broadly on the interval of geologic time from the 
Mesoproterozoic (-1ZOO Ma) through the earliest Paleozoic (-490 Ma). I use 
pal~omagnetism and geochronology to trace the history of continents during that time 
period (particularly the continents making up ). We also examine the 
relationship between plate configuration, paleoclimate and the evolution of life on 
earth. 
Copies of translated letters show internal communications within various academic and industrial 
entities within the USSR and, later, Russia. The translation . of an undated letter signed by the 
president and secretary of the · reads: 
For outstanding contribution to the development and implementation of mathematical 
methods and practice of computer use, the Geological survey are [sic] in vast 
gratitude to [the petitioner]. · 
Please provide [the petitioner] the opportunity to publish his findings in the 
The letter appears to be, at its root, a letter clearing the petitioner's paper for publication in an 
Academy journal. Without other materials for context, USCIS cannot determine whether the 
reference to "outstanding contribution" is a special reference to the petitioner's work or standard 
language in such letters. 
chairman of the , stated: "The 
foreign and domestic market has flourished thanks to [the petitioner's] high­
economical system development and, the implementation of precious metals and stones." and 
credited the petitioner with "establishing the mutually beneficial cooperation · with " In 
another letter, the same official stated that the petitioner created "highly effective systems of 
calculating the whereabouts of gold deposits," and recommended that "the system which [the 
petitioner] established to locate gold deposits, be widely implemented in the practice of geological 
exploration." The letter does not describe "the system," and the .record contains no documentary 
evidence to show that the did, in fact, widely implement the system. The letter 
of recommendation is not, itself, evidence that the implementation later took place. Furthermore, the 
quoted letters date from 1998 and 1996, respectively. The record does not establish that the 
petitioner's methods remain in use, and thereby continue to contribute to the economy. 
vice president of the __j reCommended that the Academy 
"award financially [the petitioner] and his colleagues" for "his study of the identification: of diamond 
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pipes in the region and the neighboring . " · Other letters from the 
1970s, 1980s and 1990s similarly congratulated the petitioner on his discovery of precious metal and 
.J mineral deposits, and his development of methods for their recovery. These tasks, however, appear 
to be inherent to the petitioner's specialty within geology~ The letters contain few details about the 
petitioner's work, and afford no basis to compare the petitioner's past achievements with those of 
others in that specialty. Also, nearly all pf the Russian letters are from more than a decade ago, and 
therefore they do not show that the petitioner has continued to make contributions to his field that 
would justify projections of future benefit to the United States. 
What appears to be the only recent letter is a July 24. 2012 statement from _ ThP-
translation indicated that the J>etitioner worked "at the 
[at the] through the years of December 1982 to 
January 1991," and, in May ~~~8, receive ··a great financial award of six months working salary 
and an award of gratitude." The Russian-language original letter does not show the dates "1982" or 
"1991." Rather, the corresponding paragraph gives the dates of the petitioner's employment as 
")];eKa6p» 1988 ro.na no »HaapL 1992. ro,na." Because the Russian language uses the same Arabic 
numerals as English, no knowledge of the language is necessary to see the discrepancy between the 
Russian original and the English translation. 
The translations submitted in response to the RFE also contain various grammatical errors (some of 
them identified above), and repeatedly refer to the Union of Soviet Socialist Republics as the 
"United Soviet Socialistic Union." The translations are certified as required by the regulation at 
8 C.F.R. § 103.2(b )(3), but the above anomalies cast doubt on the reliability of the submitted 
translations and, therefore, on their weight as evidence. Doubt caSt on any aspect of the petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, . 
and attempts to explain or reco.ndle such inconsistencies, absent competent objective evidence 
pointing to where the truth, in fact, lies, will not suffice. /d. at 582, 591-92. 
The director denied the petition on November 6, 2012. In the denial notice, the director listed the 
petitioner's submissions but concluded that the petitioner had not submitted "corroborative primary 
evidence ... specifying the direct role the beneficiary has played in the field as a whole." The 
director added: "While some witnesses indicate that the beneficiary has useful ideas in his field, the 
effectiveness of the beneficiary's method has not been strongly established. The suggestion that 
such methods might, possibly at some future date, be beneficial is not sufficient to establish 
eligibility for a national interest waiver." The director noted that the petitioner had not shown that 
his published work has attracted significant attention through citation or other means. The director 
also observed that the intrinsic 
merit of geology, and the national scope of the benefits that the field 
offers, do not automatically qualify a given geologist for the waiver. 
On appeal, counsel states: "the Services [sic] has concluded that the beneficiary does meet the 
required standard for a National Interest Waiver since he meets 4 of the standards and the Service 
has acknowledged that he also meets the requirements of substantial intrinsic merit." Here, as 
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before, counsel refers to "4 .... standards" for the waiver, but does not elaborate. The director, in 
denying the. petition, did not state that the petitioner meets the requirements for the waiver. The 
"substantial intrinsic merit" guideline relates to the petitioner's occupation, rather than the petitioner 
individually, and is only one of several criteria that the petitioner must satisfy in order to qualify for 
the waiver. 
·counsel states: "The Service . 
. . inferentially suggests that 'the beneficiary appears to be a 
Geologist.'" Counsel protests this "unfounded characterization" that "suggests that [the director did 
not review] his credentials." The director did not dispute that the petitioner is a geologist. Rather, 
the director stated that the petitioner seeks "to perform services as a Geologist," that he "will be 
employed as a Geologist," and that the waiver request "rests on the issue of the beneficiary's work as 
a Geologist." There is, however, a passage that reads: "Although the beneficiary appears to be a 
Geologist, there is little evidence to persu~de USCIS that granting a waiver of the job offer 
requirement would be in the national interest in this case." In context, there appear·s to be a missing 
adjective before the word "Geologist"; the director evidently intended to say something like 
"Although the 
beneficiary appears to be a well-qualified Geologist. ... " The director was not 
implying that the petitioner was somehow impersonating a geologist to qualify for the waiver. 
Rather, the director's point appears to have been that, to qualify for the waiver, it is not enough to 
show that one is a qualified geologist, because geologists are normally subject to the statutory job 
offer requirement. This isolated passage in the denial decision does not demonstrate prejudice on the 
director's part, particularly when the. same decision contains numerous unequivocal references to the 
petitioner as a geologist. 
Counsel asserts that the petitioner "has shown that the [NYSD01] standard ... has been met. ... 
There is no quantum leap require.d to project that [the petitioner] will make a significant impact on 
the US economy since he has already demonstrated . . . his international recognition and 
achievements in the Soviet Union and 20.other countries." Counsel does not identify the "20 other 
countries"; the petitioner's documentation came from the USSR and the Russian Federation. 
Elsewhere in the appellate brief, counsel stated that the petitioner "was a contributing scientist to 
more than 35 countries." 
Counsel notes that "gold prices are at an all-time high ·worldwide." The record shows that the 
petitioner has worked with gold in the past, but there is no objective, specific evidence to show that 
the petitioner has consistently had substantially more success in locating gold than other qualified 
professionals in his field. The discovery or identification of gold deposits does not automatically 
trigger the waiver. Rather, location of gold and other minerals appears to be an intrinsic part of the 
profession of geology. There is no blanket waiver for geologists, nor for the subset of geologists 
who have worked with gold in the past. · 
Furthermore, as noted earlier, the petitioner originally based the waiver request on phosphate 
prospecting in Florida, which is the subject of the petitioner's only documented offer of employment 
in the United States .. The petitioner's earlier work with gold served to illustrate his prior career, 
rather than his future plans for work in the United States. Only after the director issued the RFE did 
counsel's paralegal assert that the beneficiary would serve the national interest through gold mining. 
(b)(6)Page 11 
To establish the petitioner's influence on the field of geology and mineralogy, counsel cites 
previously submitted materials from 1965 to 1998, and asserts that the petitioner has_ influenced the 
field by publishing his work. Counsel claims that the petitioner's methods remain in use today, but 
does not support that claim with contemporary evidence. The unsupported assertions of counsel do 
not constitute evidence. See Matter ofObaigbena, 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). Evidence from vears ago is not evidence of current use of the petitioner's work. Counsel cites a 
presentation," ,"as an example of the petitioner's 
work, but that presentation dates from 1985. Following decades of subsequent progress, much of the 
computer technology from 1985 is now obsolete. 
Counsel states that the appeal includes "a complete set of [the petitioner's] research and fmdings as it 
relates to his new theory for oil and gas exploration." Like the new emphasis on gold, the discussion of 
"oil and gas exploration" was not part of the initial petition. The netitioner initially predicated the 
waiver application on the prospect of"significant job creation in , 
FL," contingent on 
the discovery of phosphate deposits on property held by t. 
In a new affidavit, dated December 5, 2012, the petitioner states: 
My finding. will dramatically reduce the cost of oil and gas exploration and at the 
same time prevent further damage to the environment. 
In my study I have concluded that dimethylether derived from shale is the most 
promising Diesel fuel for the future and at a cos-t that is measurably less than the cost 
of liquefied natural gas .... 
My invention the is designed to extract the maximum amount of 
useful components from oil shale. The now tinder construction is 
ideally suited to incorporate my findings that will create thousands of jobs throughout 
the United States. It will also in the future lower the actual cost of g(!.soline ·at the 
pump. 
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 shale 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 ~ot advanced beyond the planning stages. 
Regarding phosphate mining, the original basis for the waiver application, the petitioner submits 
background materials and an online article by the 
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Page 12 
The article does not mention the petitioner. Instead, it discusses various technical and 
environmental chall~nges that the seeks to. address. Handwritten marginal notes 
contend that the petitioner's innovations address these problems, and thereby serve the national 
interest. There is no evidence that the is aware ofthe petitioner's research or intends 
'to use it. The petitioner's stated intention to address the problems named by the is not 
evide11ce in support of the waiver claim. 
The petitioner has claimed significant influence in the fields of geology and mineralogy. He has 
documented extensive experience, but experience is not the same as influence. In terms of how he 
intends to benefit the United States, the petitioner has provided information about phosphate, gold 
and hydrocarbon fuels, but he has not shown how his past work continues to have impact or 
influence in any of those areas. By moving between those different areas of geological research, the 
petitioner has not pursued a single, consistent line of reasoning to show that his future work will 
benefif the United States in ways that merit permanent immigration benefits. 
As is clear from a plain reading of the statute, exceptional ability in the sciences does not automatically 
· qualify an intending immigrant for ~ waiver ·of the job offer requirement based on national interest. 
likewise, it does not appear to have been the intent of Congress to grant national interest waivers on the 
basis of the overall importance of a given ·profession, rather than on the merits of the individual alien. 
On the basis of the evidence submitted, the petitioner has not established that a waiver of the 
requirement of an approved labor certification will be. in the national interest of the United States. 
The burden of proof in these proceedings restS solely with the petitioner. Section 291 of the Act, 
8 U.S,C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.