dismissed EB-2 NIW Case: Mining Engineering

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Serviceo 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: AUG 0 1 2014 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. § 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 Jaw 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 l-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)JD e_A[II(l cJv 
(\ Ron Rosenberg 
U Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed .the decision to us at the Administrative Appeals Office on appeal. We 
summarily dismissed the appeal, but subsequently moved to reopen the proceeding. We will dismiss 
the appeal on its merits. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a mining engineer at 
which operates a copper mine in Arizona. 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. 
The petitioner's latest submission consists of a legal brief, third-party letters, and information regarding 
the petitioner's receipt of a scholarship award in 2009. The brief is a slight revision of a brief submitted 
previous! y. · 
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 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 
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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: 
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. Id. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Id. 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. Id. at 217-18. 
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. Id. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here 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. Id. 
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 professions holding an 
advanced 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, Immigrant Petition for Alien Worker, on December 3, 2012. In 
a personal statement, the petitioner stated: 
I spent two-years of my masters' program as a research assistant on a multimillion 
dollar, multidisciplinary research project. The project aimed at the effect of long term 
stability of rock piles that was aimed at predicting the potential for mine rock piles to 
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fail using engineering, microbiology, mineralogy, geological and geophysical data 
and methods .... I was among the geotechnical engineers responsible for calculating 
the engineering geotechnical index parameters below which failure may occur. 
The tremendous amount of work completed and published on this project is in the 
interest of the nation because it will help the mining industry nationwide and 
worldwide to predict and prevent recurrence of catastrophic rock pile failures .... 
Also this research has revealed more data about how the design and construction ?f 
mine rock piles could be improved to reduce the risk of rock pile failure and pollutant 
discharge into the environment. 
Various background materials address the nature of the petitioner's work. There is no dispute 
regarding the intrinsic merit of the petitioner's occupation, or the national scope of the benefit from 
that occupation. At issue is the third prong of the NYSDOT national interest test, concerning the 
question of whether the benefit from the petitioner's continued employment outweighs the national 
interest inherent in the labor certification process. 
The petitioner submitted photocopied pages from his master's thesis from the 
subsequently published in booK rorm oy 
~- a print-to-order publishing house specializing in "academic research papers, 
Bachelor's Theses, Master's Theses, Dissertations or Scientific Monographs." The petitioner also 
submitted a letter confirming that he presented a paper "at the 
The petitioner submitted no evidence to establish the 
impact of these works on the field as a whole. 
The petitioner submitted nine third-party letters in support of the petition. 
either faculty or graduates of Pi·ofessor 
underlying the petitioner's master's thesis: 
Four of the writers are 
described the project 
[The petitioner] worked alongside renowned geologists, scientists, geotechnical and 
mining engineers, and geochemists on a large and extensive research project to 
characterize six (6) mine waste rock piles created by the mine between 1969 
and 1982 .... The ultimate goal of the project was [to] design a modality to ensure 
the stability of the mine waste rock piles and to curb acid mine drainage from mine 
waste rock piles. 
Prof. stated that the petitioner's "contributions to this project were very valuable," but did 
not specify what those contributions were or describe the outcome of the project. 
Professor stated that the petitioner's "academic research and his professional 
work have contributed, and will continue to contribute, to the understanding of the physical 
parameters of rock support and rock failure in mining operations," but, like Prof. he 
provided no details about those contributions and no explanation as to how those contributions stand 
out in the field. 
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Professor of the provided further information about the 
petitioner's graduate research: 
[The petitioner] has conducted substantial research at the mine 
in New Mexico. This research focused on the geomechanical stability of massive 
rock piles which surround most surface metal mines in the U.S. Stability of these 
large rock piles is of concern for safety and environmental reasons. The rock piles at 
are among the largest in the world. His work focused on the problem of how 
slow shear deformation of a rock pile can affect its shear strength properties. 
Prof. stated that the petitioner's research led to a presentation at "a highly competitive 
meeting," and "an open file report for the 
... This is an archival report which will be used by geotechnical researchers and mining companies 
around the U.S." 
_ is now a mine operation manager for Accordin~ to his 
curriculum vitae, Mr. like the petitioner, earned his master's degree at 
condncting "research on shear strength and slope stability of rock piles" at the Mr. 
praised the petitioner's "immense contribution to help curb the trend of negative impacts of 
mining waste product on the environment. ... The originality of his work and its substantial 
importance to the minerals industry is outstanding." He did not elaborate, stating instead that the 
petitioner is well-qualified for productive employment in the mining industry. 
Dr. . an environmental health and safety manager for (a fertilizer 
manufacturer), earned his doctorate in geochemistry at m 2008, when the 
petitioner began his graduate studies at the same institution. Dr. stated that the petitioner's 
"research on effect of deformation rate on shear strength of rock pile materials provided an in-depth 
understanding on long term stability of rock piles on dry and wet conditions to people inside and 
outside the mining industry .... [The petitioner's] work provided understanding of mine stockpiles 
behavior and how safe it is to work around them." 
Two of the writers are 
stated: 
officials. _________ _ chief mine en'gineer at 
[The petitioner] has demonstrated superior skills in the field of mine stockpile design 
and planning. Most of the copper produced from the United States comes from low 
grade, open pit operations where milling is not feasible due to both mineralogy and 
economic considerations. As a result, leach stockpiles have become the only feasible 
processing method for most copper operations. However, the risk associate[ d] with 
leach stockpiles could be very high if they are not designed and planned well. The 
two main concerns of leach stockpiles are slope failure and uncontrolled spillage of 
acid solution. 
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[The petitioner's] knowledge [of] slope stability of stockpiles is very important in 
controllin2: both of these hazards. His oaper 
presented at the 
, IL in June of this year [2012], is an eye­
opener for engineers who design stockpiles and those engaged in the remediation of 
old stockpiles. [The petitioner] provided a new way of using existing test methods to 
predict the long term stability of rock piles at a low cost. This method will be very 
attractive to mining companies, and geotechnical and environmental consultants alike 
because it is cheap and provides results quickly. 
The petitioner documented his presentation of the paper, but submitted no evidence to show that it 
attracted significant attention in the mining community, or that others have adopted his methods. 
Mr. also asserted that "the mining industry is ... lacking the skilled manpower it 
needs to keep up with the demand [for] various metals and minerals around the world." 
The labor certification process exists to address worker shortages. See NYSDOT, 22 I&N Dec. at 
218. Given the asserted shortage of qualified engineers with the requisite training, and the evident 
existence of an offer of permanent employment, the situation appears to correspond close! y to the 
very situation that the labor certification process was designed to address. !d. at 222. 
, a mine engineer in offered general 
observations about the economic importance of the mining industry, and asserted that the petitioner 
is a "highly talented engineer" who "is committed to integrating social, environmental, and 
economic principles in the mining industry from exploration through development, operation and 
reclamation." 
quality assurance coordinator at . stated: "[the petitioner] has become 
an apt user of our software that is widely used in the mining industry. The training courses and field 
work used with software add an important positive note to [the petitioner's] personal 
experience." 
Dr. senior project engineer at stated that the petitioner's 
"academic credentials and professional experience are unique and in demand here in the United 
States." Dr. did not discuss the petitioner's work in any detail. Also, Dr. is an 
electrical engineer who claims no training, experience, or expertise in the petitioner's field of mining 
engineering. 
The director issued a request for evidence on March 14, 2013. The director instructed the petitioner 
to submit additional documentation of his impact and influence on his field, such as evidence of 
citation of his research work. In response, the petitioner submitted a royalty statement from 
showing the sale of one copy of his book between January 2011 and April 
2013. A printout from the Google Scholar search engine shows one citation of the book during that 
same period. The printout does not identify the citing author(s). 
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The petitioner also submitted letters from six writers, one of whom appears to be the citing author 
mentioned above. a research engineer at as evidence of how his work has 
influenced others in the field. Mr. stated: 
I first became familiar with [the petitioner's] research work when researching on 
articles on mine slope stability and the behavior of soils/rocks under different 
conditions .... [The petitioner's] paper not only involves prediction and prevention of 
future mine rock pile and slope failure, butalso demonstrates examples of differen[t] 
soil behaviors under different environmental conditions which was a key component 
in my research work. Due to the high quality of this research work, the article served 
as a good reference for the thesis of my Master of Science degree in Mining 
Engineering. 
A single citation of a research work does not establish influence over the field as a whole, or 
demonstrate that the mining industry has widely applied the petitioner's method. 
Four of the remaining five letters include variations on the sentence: "It is my professional opinion 
that [the petitioner] has had a degree of influence on his field that distinguishes him from other 
professionals with comparable academic/professional credentials." One of these four letters is from 
senior engineer at who stated: 
[The petitioner] has not only come up with difficult conceptual problems in mining 
engineering research, but he also designed and built a wooden slope monitoring 
device to measure tension cracks when he was in charge of slope engineering here in 
mine. His contribution has help[ed] prevent a lot slope failure in a timely 
manner. [The petitioner] has a top [sic] of specific prior achievement which justifies 
projections of future benefit to the U.S. national interest. Identifying and monitoring 
safety hazards are very crucial in the field of mining and civil engineering. 
The remaining writers all provided earlier letters with the initial submission. 
second letter includes a chronology of significant slope failure incidents that matches, almost word 
for word, the chronology in the petitioner's own initial statement. Mr. also stated: 
[The petitioner's] knowledge on Mine slope stability is very crucial to the national 
interest. [The petitioner] played a successful role for the success of the five-year 
project which ... [took place] on mine rock piles at 
mine in NM. He analyzed the geotechnical properties of the rock pile 
material. In his research paper, he conclude that due to everyday mining activities 
and everyday movement of heavy and light vehicles around the mine the stockpiles 
would actually be compacted and will take a longer time for the stockpile to fail, but 
continual monitoring is necessary. He also concluded that environmental conditions 
such [as] rainfall is a primary contributor [sic] of slope failure and therefore dams 
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must be built around the stockpile to prevent the creep movement of the stockpil e to 
the environment. 
Mr. indicated that the petitioner's findings could also apply to "highway slopes ," affecting 
"highway structures and . . . the traveling public," but the record does not include any evidence that 
any highway authority has adopted the petitioner's methods. 
stated that the petitioner's "research into the relationship between 
deformation rate and the shear strength of rock piles provides a more affordable method of assessing 
the stability of rock piles. This is [a] tool that the mining industry can use to provide answers to 
slope stability questions on existing and future planned stockpiles at less cost in [a] more timely 
fashion ." Although Mr. asserted that "the mining industry can use" the petitioner's 
research, the petitioner has not provided evidence that the industry has begun to do so. 
Professor stated that the petitioner's "research focused on how the rate of deformation 
of a rock mass, particularly slow deformation, impacts the overall stability of the rock mass as 
evidenced by the friction angle and cohesion variables .... [The petitioner's] work influences the 
way engineers look at rock mass stability ." 
5 second letter is mostly identical to his first, apart from some added passages such 
as: "It is ... my professional opinion that [the petitioner] has a record of specific prior achievement 
which justifies projections of future benefit to the US national interest" and "He is truly an 
exceptional mining engineer , who has made real and unprecedented advancements in the field." 
The director denied the petition 
on August 8, 2013. The director acknowledged the letters, but stated 
that "they do not indicate that the beneficiary's contributions have enjoyed widespread 
implementation in the field." 
The petitioner's appellate brief consists primarily of quotations from previously submitted letters. 
The brief asserts that the petitioner relied heavily on letters because he "is a working professional 
and not a professor at a university, [and therefore] the type of evidence that can be submitted ... is 
different than that of a typical researcher." 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregard ed simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available ." !d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 r&N Dec. 791,795 (Comm'r 1988). However, 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
-··· ··· ·······-- -----·----- ---- -------- ------- ---- - --- -----
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for the benefit sought. !d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility.; users may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable . See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also 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 ' I Comm'r 
1972)). 
Many of the writers stated that the petitioner's work changes the way the mining industry measures 
shear deformation, but the letters often lacked details, and the petitioner submitted no independent 
evidence to show that the industry has, in fact, implemented his work in the manner claimed. 
Documentation of this implementation need not take the form of citation of published articles, but 
the petitioner has submitted no alternative evidence. Furthermore, witnesses have asserted that the 
petitioner's published and presented research contained important contributions to the field and 
attracted significant industry interest, but the documentary evidence does not reflect such attention. 
The petitioner documented one citation of his published work, and the sale of one copy of his book. 
These figures do not establish significant industry interest or otherwise corroborate the letters. In the 
absence of corroboration, the writers' letters express confidence in the potential impact of the 
petitioner's work, without establishing that the potential has been realized. 
Following the reopening of the appeal, the petitioner has submitted two further letters and one other 
exhibit. A printout of an electronic mail message from Aoril 2009 shows that the petitioner, a 
graduate student at the time, received a scholarship from the ~ 
The petitioner has not established the significance of the 
award. The message, addressed to five recipients, begins: "Congratulations. You have each been 
awarded an scholarship," thus indicating multiple recipients within the one chapter of the 
organization. 
The two new letters bear the signatures of engineers who claim no direct knowledge of the 
petitiOner. vice president of "a consulting firm specializing 
in the stability ot slopes ot large open pit mines and the stability of underground mines," stated: 
I was asked to review a technical paper and resume of [the petitioner] to provide an 
opinion regarding his professional credentials. It should be stated that I have not met 
[the petitioner] and that this letter is based on my review of his curriculum vitae and 
his published professional paper. 
The signer of the second new letter, Albert Adu-Acheampong, is currently a consulting engineer at 
Previously, he conducted research for the same gold mines in 
where the petitioner would later work. Mr. states that he based his letter on his 
"review of [the petitioner's] published professional paper ... [from] 2012." Both letters, however, 
contain nearly 
identical passages. The similarities suggest that the petitioner is the source of the 
shared language. Cf Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) 
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(concluding that an immigration judge may reasonably infer that when an asylum applicant submits 
strikingly similar affidavits, the applicant is the common source). As a result, the similarities 
undermine the claim that Mr relied only on the beneficiary's curriculum vitae and his 
paper, and that Mr. _ _ based his letter on the paper alone. Doubt cast on any aspect 
ofthe petitioner's proof may lead to a reevaluation ofthe 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). 
Both new letters claim wider use of the petitioner's work. Mr. letter states: 
[I]n order to avoid [slope failures], mining companies are benefiting from [the 
petitioner's] research concerning the shear strength of geologic materials and the 
impact of strain rate on the strength of the materials. Mining company professionals 
and their consultants are using the results provided by [the petitioner] in their designs 
of these large excavations and spoil piles. 
Mr. does not identifY any mining companies or consulting firms that use the petitioner 's 
results. Therefore, Mr. s letter, like those that preceded it, makes a general claim of wider 
use of the petitioner's work but does not support that claim. See Matter of Soffici, 22 I&N Dec. at 
165. 
Mr. states: 
As an underground mine consulting engineer, I have used this concept of strain rate 
effect in designing a safe working environment for mine workers. To design and 
safely operate large earthworks, a lot of mining companies use [the petitioner 's] 
research work as a guideline to prevent future fatalities. Most highway construction 
companies use the understanding of landslide or creep effect (strain rate) on highway 
slopes to design embankment when necessary. 
Neither writer explains how they know the petitioner's work to be in widespread use, if their 
comments were purportedly based solely on the petitioner's paper and curriculum vitae. 
In wording that closely resembles the wording of Mr. letter, Mr. states 
that the petitioner's "paper provides a greater insight into the shear strength of spoil pile materials 
that are directly applicable to geotechnical engineering professionals" and the companies that 
employ them. The record does not show any published citations of the petitioner's research work 
(the only acknowledged citation appearing in a graduate thesis), and the petitioner has not submitted 
other evidence such as trade publications showing that others have disseminated the petitioner 's 
methods or advocated for their adoption. 
The submitted evidence does not corroborate the assertion that the petitioner 's work has influenced 
the field as a whole. The assertion that the petitioner's work could eventually have significant 
impact does not establish eligibility as of 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 benefit request. 
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8 C.F.R. § 103.2(b )(1 ). US CIS cannot proper! y approve the petition at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matt er of Katigbak , 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). 
The petitioner has not established a past record of achievement at a level that would justify a waiver of 
the job offer requirement. The petitioner need not demonstrate notoriety on the scale of national 
acclaim, but the national interest waiver contemplates that his influence be national in scope. NYSDOT, 
22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the 
field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a past history of 
demonstrable achievement with some degree of influence on the field as a whole'·'). The petitioner is a 
member of the professions holding an advanced degree, but he has not established that he qualifies for a 
national interest waiver of the job offer requirement inherent in the immigrant classification he seeks. 
We will dismiss the appeal for the above stated reasons. In visa petition proceeding s, 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 appeal is dismissed.