dismissed EB-2 NIW Case: Oil And Gas Consulting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
DATE SEP 051011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Pelitioncr: 
Bcnl:ficiary: 
U.S. J)cl}artm(~nt of Homdand S{'l'lIrit~ 
U.S. Cilil.l.::nship and Illlmigrali!H1 S\.'fVIl'l!" 
AdministratIve Aprl'ZlI" Orrin: (AI\()) 
2() Ma~.,;Jchu~ell~ Av,: . N W . M'" :11'I(l 
Wasilinglllll. 1)( ~()'i-'l).:()'J(1 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Mcmher of the Professions Holding an Auvanced 
Ikgr"e m an Alien of Exceptional Ability Pursual1l to Section 203(b)(2) of the Immigration 
and Nationalitv Act, H U.s.C. ~ 115.1(h)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plea~c find the decision of the Administrative Appeals Office in your casco All ot the doclIlllents 
related In thi .... 1l1atter have heen returned to the office that originally decided your case. PI case he adyi-.;cd lh;ll 
anv further inquiry thal vou might have concerning your case must he made to that office. 
If you hclic"l' the AAO inappropriately applied the law in reaching its uecisioll, or you have mldiliPll<ll 
information thaI yllLl wish In have considered, you may file a motion to reconsicier or a motion to rcopell ill 
accordance with (he instructions lHl Form J-24013, Notice of Appeal or Motion. with a fee or $6J(), The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Plcase he aware that H C.P.R. & 103.5(a)(I)(i) requires any moti()n to he filed within 
::;0 li;tY,", of the decisiun lh(lllhe motion <.;ceks In reconsider or reopen. 
Thank YOlL 
Chid, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, The malin is now hefore the Administrative Appeals Office (AAO) on appeaL The AAO will 
dismiss the appeaL 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationalitv Act (the 
Act), 1\ USC, & I I 53(b)(2), as a member of the professions holding an advanced degree, The 
petitioner secks employment as an international oil and gas consultant with his company, _ 
The petitioner asserts that an exemption from the requirement of a job offer, and thus 01 a 
labor certification, is in the national interest of the United States, The director lound that the petitionel 
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 joh offer would he in the 
national intel'est of the United States, 
On appeal, the petitioner submits a brief from his then attorney, In this decision, the 
te1111 "prior counsel" shall reter to Me, The petitioner retained new counsel 
atier the tiling ofthc appeaL The record contains no brief or other statement ti'om the petitioner's new 
atlorney of record, 
Section 203(b) of the Act states, in pntinent part: 
(2) Aliens Who Arc Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. 
(A) In GeneraL, Visas shall be made available, , , to qualified immigrants who arc 
members of the professions holding advanced degrees or their equivalent or who 
hecause of their exceptional ability in the sciences, arts, or business, will substantially 
belle fit prospectivelv the national economy, cultural or educational interests, or wellilfc 
of the United States, and whose services in the sciences, arts, professions, pr husincs, 
are sought by an employer in the United States, 
(/3) 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 
ill thc United States, 
The director did not dispute that the petitioner qualifies as a member of the professions hnlding all 
advanced degree, The sole issue in contention is whether the petitioner has established that a waiver or 
the job offer requirement. and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the tenn "national mterest, Additionally, 
Congress did not provide a speci!ie detinition of "in the national interest," The Committee on the 
Page 3 
Judiciarv merely noted in its repOrllo the Senate that the committee had "focused on national interest b\ 
increasing the number and proportion of visas [or immigrants who would benefit thc United States 
economically and otherwise ...... S. Rcp. No. 55. 10 1st Cong .. 1 st Sess .. 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990. published at 
SA Fed. Reg. noS97. A0900 (November 29.19(1). states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as t1exible as possible. although clearly 
an alien seeking to meet the Inational interest] standard must make a showing 
signiticantly above that necessary to prove the "prospeetive national benetit" 
I 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 wilJ be in tlil' 
national interest. Each case is to be judged on its own merits. 
lIT re New York Siale [)epl. or Transporlatio/1 (NYSDOl), 22 I&N Dec. 215 (Act. Assol'. CO)J)m'r 
199H), has set t()rlh 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 natioll<ll in .scopc 
Finally. the petitioner seeking the waiver must establish that the alien will serve the national interest tn a 
substantially greater degree than would an available United States worker having the same minimulll 
qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justities projections of tuture benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future. serve the national interest cannot suffice tll 
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 clemonstrable pflor 
achievements. and whose benefit to the national interest would thus be entirely speculati\'~. 
Thc AAO also notes that the users regulation at 8 C.F.R. § 204.5(k)(2) cletines "exceptional abilitv" 
as "a degree of expertise signiticantlv above that ordinarily encountered" in a given area nt' 
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 1-140 petition on June 14. 2011. In an accompanying leiter. priot 
counsel stated that the petitioner "has been on the cutting edge of designing and implementing 
processes used in petroleum production. He has a significant record of achievement and original 
contribution as set forth in the attached, indicating that he has mentored hundreds of young 
petroleum engineers and other professionals." 
Page -J 
Prior counsel observed that the petitIOner is self-employed and therefore cannot ublain labor 
certification. while at the same time acknowledging the following passage from NYS[)()T: 
The Service acknowledges that there are certain occupations wherein individuals are 
essentially self-employed, and thus would have no U.S. employer to apply for a labor 
cerlificalioll. While Ihis L'JCl wi!! be given due consideration in appropriate cases. the 
inapplicability or unavailability of a labor certification cannot be viewed as sullicicllt 
cause for a national interest waiver: the petitioner still must demonstrate that the sci 1'­
employed alien will serve the national interest to a substantially greater degree than 
do others in the same field. 
Id at 21I:ln.5. Prior counsel then stated: 
Thus the focus is not whether theoretically the labor certification process might or 
might not reveal a qualified candidate, as there can be no labor certification process in 
this sci f-employment casel.] but whether the applicant will serve the national interest 
to a substantiallv greater degree than would a U.S. worker with the same minimum 
qualifications. As this is an EB-2 case, the minimum qualifications would be 
baehelor's and 11vc years' expericnce: the measurement then is whether apfllieant 
with 11 'Tar's isici experience and various accomplishments will make a 
substantially greater contribution than a person with 5 years' experience. a single 
degree and no accomplishments. 
The AAO disagrees with prior counsel's interpretation of NYSDOT as saying that a self-employed 
alien with more than the minimum qualifications presumptively qualifies for the waiver. The 
precedent tkcision docs not merelv state that an alien's classifications must exceed the minimum 
required for a given occupation. Rather, "rnhe alien must clearly present a signitieant benelit (0 the 
field of' endeavor." hI. at 218. The petitioner must demonstrate "a past history of' demonstrabk 
achievement with some degree of influence on the field as a whole .... In all cases the petitioner 
must demonstrate speciiic prior achievements which establish the alien's ability to benefit the 
national interest." ld at 219 n.6. Congress could have.plainly exempted self-employed aliens from 
the job offer requirement, but did not. USCIS therefore has no basis to conclude that self-employed 
aliens are presumptively entitled to the waiver, or to a lower threshold of evidence to qualify for it. 
Prior counsel contended that thc petitioner's "skills and his proposed employment are so specialized 
.. that there is virtuafl' no chance that any American worker would quality." The ,en' purpose or 
labor certification is to determine whether qualified United States workers are available. Thus, prior 
counsel essentiallv argued that a labor certification is so likely to be approved that it would he ,\ 
waste of time '1I1d resources to actually go through with the process, and that users should 
acknowledge the foregone conclusion by approving the waiver. The AAO does not find this line of 
reasoning to be persuasive. 
Page 5 
Prior coullsel stated: "As energy development is in the current epoch a national security issue .... it 
is respectfully suggested that that in itself outweighs the nonnal requirement of labor certitication.·· 
Ahsent a statutory mandate (such as the one Congress established for certain physicians at section 
203(b)(2)(8)(ii) of the Act), USClS will not designate a blanket waiver for any given occupation. 
Sec NYSDOT. 22 I&N Dec. 217. Eligihility must rest on the merits of the individual alien. rather 
than (1n the declared importance of the occupation or field of endeavor. 
In a statcment accompanying the petition, thc petitioner stated: 
I have 24+ years of professional experience at the service of the hydrocarbons 
indus1[y, working at the helm of many critical projects for some or the world', 
leading energy corporations in Latin America and the Caribbean. I am widely 
recognized for my genuine ability and unique talent to significantly improve the oil 
productivity levels of any organization in the energy industry ... while improving its 
responsiveness against unforeseen events .... My rather unique expertise, which I 
hav,,--applied to reservoir and well surveillance and performance optimization 
(1perations, has reached acclaimed levels of success among the leading corporations in 
the energy industry that are concerned with minimizing operational costs and 
maximizing effective profit turn-around. 
Currently. I am recognized as a pioneer in the implementation of Enhanced Oil 
RecO\'ery (EOR) methodologies to improve the productivity levels of the oil and gas 
field operation. I am considered a world renowned authority in methodologies such 
as Water Alternating Gas (WAG), Miscible Gas Injection and Water Flooding which 
vcry few people in the world have mastered .... 
My extensive knowledge and professional expertise arc of utmost importance to the 
energy industry in its continuous search for improving the efficiency and reliahilitv of 
their Exploration and Production operations through the implementation of state-uf­
the-art technologies .... 
I am internationally recognized as an Oil Production Optimization Expert with 
renowned. expertise in groundbreaking Oil & Natural Gas Reservoir Testing/ 
Intcf]2Le@tion and Development Techniques. 
[Elllphasis in original. [ The petitioner submilled various exhibits intended to establish exceptional 
ahility. such 'IS evidence showing that his salary has substantially exceeded the mecli<Jn wage ior 
petroleulll engineers. As explained above, exceptional ability is not presumptive evidence 01 
eligibility for the waiver; it is, rather, one of two possible preconditions that an alien must satisfy III 
order even to be considered for the waiver. 
Several witness letters accompanied the petition. now corporate reserves 
previousl y worked with the 
petitioner. that the petitioner led '"a multidisciplinary team. responsible 
for providing a pioneering Planning and Financial Services approach to the company', 
Maturin District operations. which drastically revitalized the productivity level or that asset." 
ho previously worked at _ and is now the Latin America consulting manager 
for Halliburton. stated: 
[The petitioner) was appointed to lead the development of the Furrial Field. presently 
the second largest oilfield in the western hemisphere. with an estimated production 
capacity of JlmJ)OO barrels of oil per day. Between the years of 1990 and 2()()(), Ithe 
petitioner) single-handily [sic] oversaw the most critical operations of the project, 
including location setup, perforation campaigns, and well assessment. .. [His] 
approach became a "Best Practice" Model [or future operations of similar 
characteristics .... Said initiative led to 114 successfully perforated oil-running wells, 
on a record time. 
reserves regional manager fo~in Spain. also praised the petitioner', 
work for 'tating that the petitioner's "findings played a decisive role in the implementatioll 
of a wate," injection project that consisted of injecting 450 MMPC gas per dav." which "allowed 
_ to reach an unprecedented production level of 385000 Barrels of Oil per Day (BOD). while 
simultaneously building up the ground for the future development of 2800 Million Barrels 
(MMBLS) o(proven oil reserves at_." 
strategic planning manager 
.mell'Tl company, stated: 
[The petitioner'sl superior expertise in the technological side of most oil 1'&1' 
operations. in addition to his flawless string of professional accomplishments ha, 
made him one of the most sought out authorities in South America when it comes to 
finding reliable and cost effective approaches to optimize oil reservoir prc,ductll"n. 
Proof of the foregoing was his outstanding role as where 
he wa.s appointed . . . to accurately establish production ~'i, reservoir 
management and development strategies for several of _ oil fields, 
throughout the whole country .... [H]e successfully applied a cutting-edge oil 
reservoir development methodology, named _ since it is conducted under the 
"trollt end loading" philosophY. This initiative helped_to save more than US 
$20tl Million Dollars in Infrastructure development, in addition to another US $o(}(} 
Million Dollars associated with the optimization of well operations and reservoir 
development projects. 
I would also like to point out that the groundbreaking _Methodology, where Ithe 
petitioner I plays a key role. is presently being used on nearly 95% of_ 
reservoir development projects. And more importantly, it has been certified hy 
-Page 7 
Mexico's National Commission of Hydrocarbons as the best methodology to he 
implemented during the design phase of any _ exploration project. 
a field development technical evaluation manager at _ praised the 
petitioner as "" pioneer in some re\'olutionizing methodologies currently linked to unprecedented 
levels of oil production optimization." Mr repeated figures claimed in other leiters, 
glohal practice manager for workflow automation at stated that the 
groundhrcaking projects that aimed to increase the level of effectiveness of oil and 
gas reservoir monitoring and perfonnance processes." Mr. _added that the petitioner "'''lS 
actively involved in the development and testing of a new Gel that could block the production of 
water inside an oil \Veil during the Multiple Lone Completion Phase." whieh "allowed oil operatt'!"s 
to exercise more cn11tml on the management of their oil reserves:' Mr. _was a "memher o!" 
a multidisciplinary team strategically assembled by [the petitionerl to take on the above-mentioned 
tasks:' 
now petroleum production modeling senior advisor at worked 
with the petitioner at . Mr. _credited the petitioner with a series of innovations that 
"helped_ tn boost its proven reserve level to new heights." 
The petitioner submitted corries of conference papers from 1999 and 2000, describing his work on 
(he An paper, "Challenges Opportunitic'i and 
indicated that a "pressure maintenance 
, were estimated to ... increase the oil recovery hv 
J3'ir: of the original nil in-place:' The same paper also "provides information on current studies. 
whose short term implementation could lead to produce up to 55% of the original oil in-place:' 
The petitioner submitted translated copies of the cover page and an introduction from what appears 
to he a 20m: technical report prepared hy _ The document identified the petitioner as one of 
ten collaborators. The record, however. does not appear to contain any of the suhstance of the 
report. The petitioner. therefore. established the existence of the report, butnllt irs content. 
The director issued a request for evidence on October 19, 20ll. The director acknowledged the 
intrinsic merit and national scope of the petitioner's occupation, but Slated: 
[Tlhe letters do not show the heneficiary has had an impact on the field beyond any 
other equally valuable employee. The petitioner has not shown the beneficiary is 
responsible for the techniques he used or made contributions to the implementation of 
techniques which have influenced the field of petroleum engineering as a whole. 
The director acknowledged the petitioner'S published articles, but stated: "it is not clear these papers 
have had an influence on the field as a whole nor is it clear the beneficiary has continued to publish 
papers in the fiel,I." The director asserted: "The petitioner must establish that the bencficiarv has a 
past reeord of specific prior achievement with some degree of influence on the field as a whole." 
In response, prior counsel stated that the petitioner "cannot file a labor certification, as he will be 
self-employed. This preeludes discussion of labor certification." Prior counsel asserted that the 
petitioner has demonstrated a past record of impact and influence on his field, in the form of "proofs 
from vario/lS bigh len:! perso}]s in his Jie!d." 
The petitioner submitted his own l3-page statement, intended to address various elemcnts of thc 
request for evidence. Regarding his low volume of published work, the petitioner asserted thai 
"engineers are builders, adventurers, and problem solvers" rather than researchers, and Ihat his 
"contributions as engineer stay within the industry in the fonn of advice while reports hardly ever 
result in news." 
The petitioner statcd: 
I am recognized as an expert III the implementation of Enhanced Oil Recovery 
(EOR) methodologies to improve the productivity levels of the oil and gas field 
operation. I am considered a world renowned authority in methodologies as Wate! 
Alternating (;as (WAG), Miscible Gas Injection and Water Flooding which vcr\' few 
people in Ihe world have mastered. 
The petitioner provided technical details about the above-named methods, and slated: "Throughout 
my professional career, I have always been at the forefront of strategic projects, serving some of the 
global leading corporations in the oil and gas industry ... , My work has been critical in the 
exploration, acquisition and devc!opment of significant oil and gas fields in Venezuela, Mexico, 
Ecuador and IjSA." The petitioner quoted from several previously submitted witness letters. 
The director denied the petition on January 20. 2012. The director acknowledged the suhmission of 
statements fro III the petitioner and witnesses, but found that they lacked important information. For 
instance, the director stated: "You declare _ is currently using FEL Methodology on LJ5'Yr: of 
ongoing oil and gas field development projects .... However, you have not provided evidence which 
would show \'O{1 developed this methodology. Instead, your attorney suggests you were an original 
user of this technology but not the developer." 
The director acknowledged that the petitioner holds a patent, but found that the petitioner "did nol 
provide evidence the patent was in widespread use." The director concluded: "thc petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the natiunal 
illtercq orthe llnitecl Staks." 
On appeal, prior counsel repeats several assertions from the response to the request for evidence. 
Prior counsel contends that the petitioner, with 24 years of "high level" experience, stands to benefit 
the United States "to a substantially greater degree than ... an applicant withjust 5 or even 10 years' 
Pag!: q 
experience and no particular accomplishments" Prior counsel contends that the petitioner "clearlv is 
vastly m(lfe qualified than a substantial majority of colleagues with the same minimal 
qualifications." which "is the standard that must be satisfied." Prior counsel asserts that the directur 
impermissibly dismissed the petitioner's "pioneering" work with cutting edge technology and 
methodologies "because rthe petitioner] did not invent them." Prior counsel states that thc director 
"violated the Kaz,!ri@ rule by explicitly formulating criteria beyond what is found In NYSQQI 
which is the onlv authoritv for determining 'substantially greater benelit.'" 
Prior counsel refers. above, to Kazariull v. USCIS, 596 F3d 1115 (9th Cir. 2(10), in which the Ninth 
Circuit Court of Appeals rukd that USCIS adjudicators may not "unilaterally impose nonl 
substantive or cvidentiary requirements beyond those set forth" in the regulations or. by extension. 
precedent decisions. Id. at 1121. NYSDOT, however, addresses the very point that prior counsel 
contests on appeaL An alien's job-related training in a new method, whatever its importance, cannot 
he considered to he an achievement or contribution comparable to the innovation of that new 
method. NYS{)O[, 22 I&N Dec. 221 n.7. This passage directly relates to and supports the director's 
assertion that using a new technique is less significant than actually developing it. 
The above being said, NYS{)()T docs not state that an alien's use oj' existing technolo!!v or methods 
is a disqualifying factor. Rather, it states that, all other things being equal, innovation c;rrries greater 
weight than use of existing technology or methods created by others. An alien can qualify for the 
waiver without creating a popular new invention or devising an influential new technique in his or 
her field, provided that the petitioner is able to establish the alien's impact and intluence in some 
other way. 
Prior counsel states that the director, in the denial notice, "notes applicant's contrihution to a 
pioneering (emphasis added) Integrated and Financial Services approach with an international 
petroleum company giant, hut that the testimonial letter did not attribute the origination of the 
approach to the applicant" (prior counsel's emphasis). Prior counsel's wording suggests that thL' 
director l(lUml the petitioner's approach to be "pioneering." Review oj' the decision shows that the 
director was paraphrasing a witness letter from Aquiles Rattia Regalado that used that terIll. 
The Board of Immigration Appeals (I3IA) has held that testimony should not be disregarded simply 
hecause it is "seIt~serving." See, e.g, Matter ofS-A-, 22 J&N Dec. 1328, 1332 (B1A 20(0) (citing 
cases). The B[A also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Ill. [1' testimonial evidence 
lacks specificity. detaiL or credibility, there is a greater need for the petitioner to submit 
corroborative evidencc. Maller of Y-H-, 21 I&N Dec. 1136 (B1A 1(98). 
The opinions of experts in the field are not without weight and have received consicieration 
above. USelS may. ill its discrcrion, use as advisory opinions statements submitted as expert 
testimony. See Maller of Caron 1l1IernafiOlllll, 19 I&N Dec. 791, 795 (Cormn'r 1988). However, 
USClS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. ld The submission of letters from experts supporting the petition is not 
Page 1 f) 
presumptive evidence of eligibility; USC/S may, as above, evaluate the content of those letters 'IS 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 iii. at 7Y5: In' 
also Malter of V·K·, 24 I&N Dec. 500, 502 1l.2 (B1A 2008) (noting that expert opinion testimony 
does not purport to bc evidence as to ·'fac!"). See also Maller of Softiei, 22 I&N Dec. 158. 165 
(('ol11m'r 199R) (citing Matter ,,(Treasllre Craft of California, 14 I&N Dec. 190 (Reg'l ('ol11m'r 
1')72)). 
The witnesses in this instance made numcrous claims of fact rather than opinion. The petitioner did 
not submit corrohorating evidence in existence prior to the preparation of the petition. which could 
have bolstered the weight of thc reference letters. Without supporting evidence, a claim regarding 
the petitioner's impact and influence is just that, a clail11, regardless of whether it appears over the 
petitioner's own signature or that of a witness Irom whom the petitioner solicited a statement. The 
director. in the request It)]· evidence, advised that "[t]he petitioner must provide independent 
objective documentation" to support claims about the significance of his work. but tile petitioner 
responded onlv with statements from himself and his then attorney. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burdcn of proof III 
these proceedings. MIIII('/" of So}liei. 22 I&N Dec. 158, 165 (Comlll'r 199X) (eitin[! MillieI' iii 
TreaslIre Cra(i u(CIlIi(rJrllia. 141&N Dec. 190 (Reg'l Comm'r 1972)). 
The submitted documentary evidence establishes that the petitioner has been active in his field, but it 
does nol show that his work has significantly improved oil yields or otherwise increased the 
efficiency, security or environmental cleanliness of the petroleum and gas industry. Prior counsel 
contends that the petitioner is entitled to the waiver by virtue of being more than minimally qualified for 
the position he seeks. but that is not the threshold established by statute, regulation or case law. On the 
hasis of the evidence submitted. the petitioner has not established that a waiver of the requirement of a" 
approved lahpr cerlification will be in the mtional interest of the United States. 
The hurden PI' proof in these proceedings rests solely with the petitioner. Section 2<) I 01 the Act. 
~ U.s.c:. ~ 13h I. The petitioner has not sustained that hurden. 
ORDER: The appeal is dismissed.