dismissed EB-2 NIW Case: Mechanical Engineering

identifYing data deleted to 
prevent d.L,,) lnwarranted 
invasion of personal privacy 
lilmucCOpy 
U.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 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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. § I 1 53 (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 originally 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1 lei) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~oo., ... .. 
\J :erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § I I 53(b)(2), as an alien of exceptional ability in the sciences and as a member of 
the professions holding an advanced degree. The petitioner seeks as a mechanical 
engineer. The petitioner is the chairman, founder and half owner 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 the 
classification sought, but that the petitioner has not established that an exemption from the requirement 
of a job offer would be in the national interest ofthe United States. 
On appeal, the petitioner submits a brief from counsel and copies of previously submitted exhibits. 
Section 203(b) ofthe 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. 
(8) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
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 innnigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101 st Cong., 1st Sess., 11 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USerS)] believes it 
appropriate to leave the application ofthis test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation (NYSDOT), 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, it must be shown that the alien seeks employment in an area of substantial 
intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the 
petitioner seeking the waiver must establish that the alien will serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. 
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 inclusion of the term "prospective" is used here to require 
future contributions by the alien, rather than to fucilitate 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 regulation at 8 C.F.R. § 204.5(k)(2) defmes "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 ofthe professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree 0 f 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on June 10, 2009. In a statement accompanying the 
initial filing, counsel explains why the petitioner believes that he qualifies for the national interest 
waiver: 
Page 4 
The fast growth of the populations in many countries in conjunction with the rising 
demand for improved transportation systems as well as vehicles create an increasing 
necessity for more modernizing the fuel dispensing systems, smaller, environmentally 
friendlier and more efficiently [sic] gasoline stations. However, the installment of 
additional standard size dispensing systems and devices has become not only 
prohibitively costly, but also virtually impossible in highly urbanized areas due to a 
lack of available vacant land. 
The_requires only ~ of the land ofa standard gasoline station; its [sic] more 
advanced technologically, its [sic] saves the environment and reduces costs in overall 
operation by 75%. 
The _ is not only more cost and land efficient, it is more environmentally 
friendly. Consumers having to drive their vehicles greater distances in order to reach 
the closes[t] gasoline station waste and extra 127,750,000 liters a year, which can be 
prevented by installing this system. 
In addition, by reducing the driving distance for consumers, the _ cars will 
be on the road for shorter distances, thereby reducing their pollutant emissions. 
Lastly, the is essential for quickly providing additional gasoline stations to 
consumers in the case of emergency evacuations or simply for high tourist time 
periods. In support of the foregoing, we have enclosed herewith a series of articles 
and research studies that clearly establish the magnitude of the issue and the 
significance of modernizing technology for handling it. (Exhibit 7). 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. I, 3 IL2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The only support that counsel cited for the above 
claims was "Exhibit 7." The record, as it now stands, does not include tabs or interstitial pages to 
identify the numbered exhibits. Counsel's exhibit list referred to Exhibit 6 as "Letters of 
Recommendation" and Exhibit 7 as "Research Studies." The materials that immediately follow the 
recommendation letters (and which, therefore, presumably comprise Exhibit 7) are published 
technical standards from the National Fire Protection Association, the British Standards Institution, 
the American Welding Society and ASTM International (formerly known as the American Society 
for Testing and Materials). The petitioner did not explain how these lengthy, highly technical 
publications establish that th~"is essential" for the reasons claimed by counsel. 
Counsel cited "[t]he fast growth of the populations in many countries in conjunction with the rising 
demand for improved transportation systems as well as vehicles." Counsel did not indicate whether 
Page 5 
the United States is one of the "many countries." In a developing nation where the majority of the 
population has only recently begun to have access to automobiles, there is arguably a need for quick 
development of a fuel supply infrastructure. The petitioner, however, did not show that this is the 
case for the United States. 
The petitioner submitted photographs and news articles to demonstrate that there is often high 
demand for gaso line at peak tourism periods and during evacuations before hurricanes and other 
foreseeable natural disasters. The petitioner asserted that many of these problems "will be solved" 
The petitioner submitted four witness letters with the p"l.lllIJil. 
petitioner's native Iran. 
~here the petitioner studied from 1984 to 1991, stated: 
[The petitioner's] company moves toward The 
design and production of the [won the petitioner] 
the presidential prize which is a high[ly] prestigious award in our country. Due to the 
high level of quality and safety, the company's products became very popular and at 
the moment the company managed to capture around 55% ofthe Iranian shares which 
is a great success for a private company in such a competitive market. This success is 
due to [the petitioner's] experience and his cooperation in different research projects 
defined between his company and JUT. The projects were defined to study different 
aspects of the product such as design, fluid flow, electrical and safety. He has 
actively participated in all of them and used the results obtained from them in his 
company's products. 
some areas have many vIsItors and 
fJ~'fJl" have to stay in long queues. In 
addition, they may need to travel long distances In modern day, 
many new planned cities have been developed or are under construction, mostly 
around main have high population and finding 
suitable them is a major problem .... 
[The petitioner] ••••••••••••••••••••••••• 
_ The project was successfully finished and a prototype was constructed 
according to the results of the project. He registered a patent for this new invention. 
advantages. The main advantages are: 1- The solution of 
particularly during the rush-hours and ho seasons and 
~~l1ll]J!ic>g;, 2- The investment is about 
Page 6 
or leasing in IRAN, investment furii •••••••••• 
fact, [the petitioner] accomplished a research project so called 
which was successfully lead [sic] to construction of a 
lilllirototype and also and [sic] industrial production line of these 
(Capitalization in original.) 
credited the petitioner with the following achievements: 
1- Establishment 
in Iran. 
2- Establishment 
3- Design and manuiacturiJlg 
which is a[n] innovative solutionl 
The above witnesses attested to 
documentary evidence of a similar sys:termc 
asserted that the petitioner's 
influenced to solve traffic p~(~~:======= "high benefit margin for the .. 
but the record contains no 
.;';;~~;'.;f~~:~~l~highlY 
conserving energy and providing a 
The Board ofImmigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BrA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. IftestinlOnial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Jd. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may, as we have done above, evaluate the content ofthose letters as 
to whether they support the alien's eligibility. See id. at 795. USCIS may even give less weight to 
Page 7 
an opmlOn that is not corroborated, in accord with other information or is in any way 
questionable. !d. at 795; see also Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'!. Comm'r. 1972». 
The Board ofImmigration Appeals held that "expert opinion testimony, while undoubtedly a form of 
evidence, does not purport to be evidence as to 'fact. '" Matter of V-K-, 24 I&N Dec. 500, 502 n.2 
(BIA 2008). Here, the witnesses have made several claims of fact, such as the assertion that the 
petitioner's company has a 55% market share and that his gas stations have relieved a shortage of 
such facilities. The witnesses have ventured beyond opinion into the realm of testable claims of fact, 
and it is therefore significant that the petitioner has submitted no documentation to corroborate those 
claims. 
ne,,",sfmp<er articles, all dated November 8, 2008, 
On February 8, 2010, the director issued a request for evidence, instructing the petitioner to 
document "a past record of specific prior achievement that justifies projections of future benefit to 
the national interest." In response, the petitioner submitted a booklet indicating that, apart from 
other advantages claimed previously, the could play "a big role for 
help with relief workers' operations as well 
petitioner submitted cOf,ies of illustrated news articles der,icting 
The petitioner claimed that "ten sets were installed in the capital" but did not document this claim. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of 14 I&N Dec. 190 Comm'r I The 
petitioner also did not document any rtxluc:tJ0nJ 
The petitioner submitted a translated letter from the Iran Standard and Industrial Research 
• '. I • • I I' I.. " he petitioner of his two-year appointment as 
The petitioner did not establish the significance of this appointment. 
Furthermore, the date on the letter, October 24, 2009, occurred after the petition's filing date. An 
applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of 
filing the application or petition. 8 C.F.R. § 103.2(b)(l). Therefore, subsequent events cannot cause 
Page 8 
a previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg' I Comm'r 1971). 
The petitioner submitted copies of contracts and other materials establishing that 
conducts business in Iran, but did not explain how these documents set the petitioner apart from 
other business owners and managers. More relevant to the petitioner's business is a June 22, 2009 
letter informing the petitioner of his re-election to the "board of directors of Kowsar Commercial­
Administrative center," the business park that is the home of the petitioner's company. Still, absent 
further evidence, the AAO cannot even tell whether this was a contested election, let alone that it is 
otherwise a significant distinction. 
~ petitioner also submitted a plan for 
_ There is no evidence that either plan won the award, or came close to doing so. (In an 
earlier the had received a "rank 3,d of innovation" for a _ 
The petitioner documents that he holds a patent An alien cannot secure a 
national interest waiver simply by demonstrating that or she holds a patent. Whether the specific 
innovation serves the national interest must be decided on a case by case basis. NYSDOT at 221 n.7. 
The director denied the petition on August 31, 2010. The director acknowledged the intrinsic merit 
and national scope of the petitioner's occupation, but found that the petitioner had not established the 
necessary impact on his field. The director observed: 
that installation of the .1Ii •• would be 
On appeal, counsel asserts that the petitioner meets all three prongs of the national interest test set 
forth in NYSDOT. Because the director did not dispute the first two prongs, only the third bears 
further discussion here. 
Counsel repeats the prior assertion that "Petitioner is the recipient 
This award is only conferred upon someone for 
rese~~ innov,"ticln and in fields related to science and teclhnolog 
printouts of which had accompanied the initial filing of the petition. 
translated materials in the record congratulated the petitioner for 
Page 9 
is the same thing as a 
Stipulating that are alternative transliterations of the same 
word, "rank 3,d" is not self-evidently an "award." list of 
Laureates is compiled for publication and announced in the 
website," but the petitioner did not submit a printout of any "list of the Laureates" including his 
name. The record does not indicate how many entries achieved "rank 3,d" in the same year as the 
petitioner's invention. 
Under the uscrs regulation at 204.5(k)(3)(ii)(F), evidence of recognition for achievements and 
significant contributions to the industry or field by peers, governmental entities, or professional or 
business organizations can provide partial support for a claim 0 f exceptional ability. Because 
exceptional ability does not autom~quality an alien for the waiver, and government 
recognition (such as a certificate from_ only partially supports a claim of exceptional ability, 
the AAO cannot conclude that the certificate strongly indicates eligibility for the waiver. 
Counsel asserts that the previously submitted evidence demonstrates the petitioner's impact on his 
field. Rather than elaborate upon this claim, counsel contends that the evidence submitted is, itself, 
documentation ofthe petitioner's impact. This line of reasoning presumes "impact" to be the same 
as "activity." Counsel states: "Petitioners became the first in the 
Middle East, which produces 
_ The preceding sentence described the factory itself, rather than its importance, 
influence or impact. 
(emphasis in original). 
Counsel states that the director should not "deny this application based on such a frivolous, albeit 
~ and uncertain, variation." Considering that the waiver claim leans rather heavily on the 
_ it is not "frivolous" to question the extent to which the invention conforms to United States 
standards and safety protocols. 
The petitioner contends that his alleviate a number of 
problems and concerns, but he has no they have actually done so in the areas 
where they are already in use. The waiver claim, therefore, relies primarily on unproven speculation 
and self-serving conjecture. The record, at times, reads more like an advertisement for the 
petitioner's product than an objective description thereof 
The petitioner has identified several real or hypothetical problems related 
_ but has not demonstrated that these problems exist at a national level in the United States, or 
that the remedy for these is the construction The 
petitioner's invention of does not self-evidently demonstrate his eligibility for a 
national interest waiver. 
Page 10 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer 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.