dismissed EB-2 NIW Case: Petroleum And Gas

(b)(6)
DATE: NOV o· 4 zo14 oFFicE: TExAs sERvicE cENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr atio n Services 
Administr ative Appeals Offi ce (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
SELF-REPRESENTED 
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 incorr ectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://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, 
Ji:if:;~trative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion to reopen and reconsider, and the director affirmed the denial of 
the petition. The matter is now before us at the Administrative Appeals Office on appeal. We will 
dismiss the appeal. 
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 with progressive post-bacc alaureate 
experience equivalent to an advanced degree , and as an alien of exceptional ability in the sciences , the 
arts, or business . The petitioner seeks employment as a facilities team lead, gas area, for 
• , 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 the equivalent of 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 legal brief, a personal statement, and a copy of a previously 
submitted Jetter from a third party. Attorney represented the petitioner at the time 
he filed the appeal on February 7, 2014 . Later, on March 26, 2014 , the Executive Office for 
Immigration Review (EOIR) suspended Mr. from practicing before the Department of 
Homeland Security. The EOIR later reinstated Mr. but the October 14, 2014 reinstatement 
order reads, in part: "If the respondent wishes to represent a party before the [Department of Homeland 
Security], he must file a Notice of Appearance (Form G-28 . .. ), including any case in which he was 
formerly counsel, prior to his suspension. " The record includes no new Form G-28 from Mr. to 
renew his representation of the petitioner. Therefore, we cannot recognize Mr. as the 
petitioner's attorney of record at this time. The appellate brief will receive due consideration, but we 
consider the petitioner to be self-represented in this proceeding. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Alien s 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 equiv alent 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 
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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 the 
defined equivalent of an advanced degree. Many of the petitioner 's initial exhibits were intended to 
establish exceptional ability in the sciences, the arts or business. Because the petitioner readily 
qualifies for the parallel classification of a member of the professions holding an advanced degree or 
its equivalent, we need not discuss these exhibits in detail. 
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 define the term "national interest." Additionally , 
Congress did not provide a specific definition of "in the national interest. " The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 , Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
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) 
(NYSDOI), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. !d. at 217-18. 
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. !d. 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. !d. 
(b)(6)
NON -PRECEDENT DECISION 
Page 4 
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 1-140, Immigrant Petition for Alien Worker, on January 28 , 2013 . An 
accompanying statement set forth the petitioner's arguments in favor of granting the national interest 
waiver: 
What [the petitioner] does is highly complex. In brief he is an expert in all phases of 
petroleum/natural gas projects, both "upstream" (prior to recovery) and 
"downstream" (after recovery[)] .... He is currently working for the Chevron 
company in Texas, and has worked for nearly [a] dozen different companies and 
consortiums all over the world during his long career. ... 
[The petitioner] intends to provide his expertise nationally ... and the petroleum and 
gas industry is inherently national in nature. 
As to the third prong [of the NYSDOT national interest test] it is important to note that 
a somewhat different test applies to aliens who will be self-employed. 
NYSDOT at page 218 footnote 5 says in relevant part: 
"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 
certification. While this fact will be given due consideration in appropriate cases, the 
inapplicability or unavailability of a labor certification cannot be viewed as sufficient 
cause for a national interest waiver; the petitioner still must demonstrate that the self­
employed alien will serve the national interest to a substantially greater degree 
than do (sic) others in the same field." 
The sole standard for self-employed aliens is that stated in bold text above. Thus any 
discussion of balancing the desirability of labor certification against the [petitioner]' s 
qualifications, although normally part of an NIW [national interest waiver] analysis, 
would be irrelevant. ... 
[TJhe mere fact that [the petitioner] has 28 years of experience and critical, leading 
roles almost throughout such period shows that he is substantially more qualified than 
others in the field .... 
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In determining the issue of whether a person will contribute to the national interest if 
the waiver is granted, NYSDOT requires a showing that: 
"it is [sic] must clearly be established that the alien's past record justifies projections 
of future benefit to the national interest. The inclusion of the term ' prospective' is 
used ... 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 at 219 . 
NYSDOT clarifies the point in a footnote to that page that academic performance 
alone cannot be the basis of an NIW, rather an applicant must show a history of 
demonstrable achievement with some degree of influence on the field as a whole. 
"Some" degree of influence is certainly less than "major " or even "significant " 
influence .... 
By virtue of mentoring such a large group of professionals from so many different 
countries on high level technical matters, [the petitioner] necessarily has had "some " 
impact on the field .. . . 
The clear meaning of the portion of NYSDOT having to do with the words "some 
influence on the field as a whole" is to preclude persons who have graduated with an 
advanced degree but have done nothing else. It is not designed to exclude any other 
category of applicant. 
(Emphasis in original.) In his own separate statement, the petitioner stated: 
With more than 28 years of professional experience in upstream and downstream oil 
and gas related operations, mostly in the field of Project Management, I have 
pioneered turnkey ventures involving the design, construction, and start-up of 
countless oil and gas Production, Refining and Distribution facilities, onshore and 
offshore; worldwide ... . 
I have an unparalleled professional success in engineering design, procurement/ 
contracting and construction of facilities for the oil & gas sector. More specifically, 1 
have amassed a wealth of knowledge in the construction and start-up of cross-country 
pipelines, extra heavy oil Upgrades, Natural Gas Treatment and Distribution Plants, 
Liquefied Natural Gas (LNG), and Liquefied Petroleum Gas (LPG) Processing Plants, 
Onshore/Offshore platforms and deep water production and storage vessels; as well 
as technology development and confidential technology developments, feasibility 
studies, alternative evaluation and selection. 
Furthermore , I have a string of accomplishments in the successful design of 
operational models based on constrains [sic], sustainability, as well as environmental 
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and social impact. In addition to the foregoing, I have led countless contract 
negotiations, ranging from the implementation of bidding processes for suppliers, 
trading laws standardization and compliance, to the design and execution of risk 
assessment strategies, just to name a few .... 
Throughout the whole length of my professional career I have occupied key positions 
within some of the leading global corporations in the energy industry .... The 
foregoing has furnished me with an unmatchable competitive edge in my field of 
expertise. This successful combination of knowledge is highly regarded and [in] 
soaring demand by professional associations and multi-lateral organizations .... 
In December 2012, I was promoted to the High-Ranking Position of Mid-Continent 
Engineering Team Lead - Gas Area, at - Mid­
Continent Business Unit. This new post requires ... me to provide expert facilities 
engineering and project management support to the development, operations and 
maintenance projects for the Oklahoma Field Management Team. In addition, I am 
in charge of supervising and mentoring a team of engineers; all while working closely 
with the Gas Area multifunctional teams to execute the Business Plan. Additionally , 
I am responsible for properly executing the following tasks: 
• Leading FE team to support local Operations team to fulfill business plan 
commitments; 
• Provide direct supervision and mentoring of team of Facilities Engineers and 
Construction Reps; 
• Support the Business Unit strategic direction and execution; 
• Provide expertise in design, construction and production activities for oil, gas 
and waterflood production 
systems; 
• Become role model and effectively utilize Project Management tools and 
processes in the management of projects; hence guaranteeing compliance with 
design standards and utilization of the management of change process; and 
• Support safe field operations and safe design 
processes. 
(Emphasis in original; footnotes and references omitted.) The intrinsic merit of the petition er's 
occupation is not in dispute in this proceeding . With regard to the national scope of the benefit from 
the petitioner ' s work, the petitioner cited statistics regarding worldwide demand and consumption of 
oil and gas products and the need to improve efficiency in extracting these resources, and showing 
that the United States consumes disproportionate amounts of those resources in relation to 
population size and availability of domestic reserves. The petitioner stated : "I have a unique set of 
tools and knowledge that allow me to design and implement methodologies that exclusively focus on 
the cost-effective optimization of operations" (emphasis in original), thereby benefiting the 
economy and environment of the United States. The petitioner did not, at that point, identify 
specific examples of methodologies that he had designed and implemented; he simply asserted that 
he possessed the necessary expertise. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
With respect to the third prong of the NYSDOT national interest test, the petitioner stated : 
All of the above-mentioned US Economy-related concerns should be addressed by a 
handful of experts in the world like me .... 
My unique expertise in oil producing regions ... allows me to rapidly analyz e 
unfolding events and estimate the behavior of key market indicators ... and to create 
independency [from] foreign oil. .. . 
Currently, there are two major natural gas developments on the US Government 
Agenda, one is the and the other is the 
Some experts have suggested the may be the largest producible reserves 
of any onshore natural gas field in the United States .... [Should] furth er 
development of this field continue, my level of expertise ... will undoubtedly be 
sought out to properly carry on this milestone .... 
To sum up, only a handful of experts in the world, such as myself, have the skills , 
abilities, and knowledge to ultimately close this steadily growing energy gap, and to 
start optimizing the nation's own resources; thus avoiding [serious] consequences to 
the nation 's economy . 
Six letters, all from individuals who had worked with the petitioner in some capacity, accompanied 
the initial filing of the petition. director of international operations for the consulting 
firm was the petitioner's direct supervisor at that company. Mr. listed several 
projects that the petitioner undertook in the 1980s and early 1990s, such as " (t]he flawless 
management of the whole permits, commissioning and start-up operations, involving the 1989 
construction of the _ _ " Mr. 
asserted that the petitioner was "the force behind the successful start-up of a Gas Lift Facility , part of 
Project, where he single-handedly led the entire engineering, procurement and 
construction operations of this Compression Module ." Mr. concluded that the 
successful outcome of these projects "made [the petitioner] one of the most sought after experts in 
Oil and Gas Project Management." 
now Latin America service director for Project Management , stated: 
[The petitioner's] unparalleled expertise in the planning, managing, organizing and 
controlling of some of the largest Capital Projects, in the oil and gas sector, 
worldwide, has made him a walking 
wealth of knowledge . . . . 
[ A]s Project Coordinator at ... [the petitioner] displayed an unparallel[ ed] 
degree of professional excellence while leading the Design Engineering, Procurement 
and Construction of a Compression Package, fully modularized, and to be 
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installed offshore .. . (H] is work was considered pioneering, due to the fact that it was 
the first successful attempt at building modularized gas compression plants to boost 
crude oil production in Venezuela. 
Mr. added that the petitioner "was working in the Production MPR 2 
Expansion Plant. . .. Orimulsion is a liquid fuel .. . [which] represents an economically attractive 
alternative for new power generation ... (as] a substitute for coal." Mr. ~ did not indicate 
the petitioner's role in the creation or production of except to state that the petitioner 
held the title of "Materials Manager" at the plant. 
Three of those who wrote in support of the petitioner worked with the petitioner at 
~:::::::=~ 
a joint venture between 
now a project manager for stated: 
[M]y tenure at brought me to experience [the petitioner 's) 
unparalleled skills as Manager of the Project, a US $45 
Million-Dollar [sic] venture, where he was solely responsible for the Engineering , 
Procurement and Construction phases involving the design and installation of a 50-
mile long Gas Pipeline and a 55-Mile long Diluents Crude Pipeline , both connecting 
to the Hamaca Upstream Production Facilities. 
As a leader of the project, [the petitioner] brilliantly managed all the engineering, 
procurement and construction stages, which demanded the use of unique 
methodological tools and well-established management principles; all leading to a 
successful completion of his job, under budget , and with zero loss time incidents. 
Somewhat similar wording appears in a letter from , project manager at 
"As Upstream Project Manager, (the petitioner] brilliantly conducted the last phase of the 
construction process, with zero loss time injuries, and under budget." Mr. also asserted that 
the petitioner "brilliantly executed all tasks [in] a timely manner; and ... achieved unprecedented 
cost savings in excess of US $2 Billion Dollars" when he was "Transport Facilities Leader .. . in 
charge of the ... Conceptual Engineering Studies " for "the Project. " 
senior project manager for , stated: 
[In 2001) I held the position of Engineering and Construction Manager for the 
Project, directly reporting to [the petitioner]. 
Since then , we have maintained close personal contact while I have followed [the 
petitioner's] career. . .. (A]s Latin America Business Unit Project Management 
Advisor [for _ J ... , he was considered the highest 
authority in Capital Stewardship Organizational Capability (CSOC) deployment. In 
this capacity, he oversaw all of the training of Project Management Professionals in 
Business Units in Argentina, Brazil, Colombia and Venezuela . Worthy of 
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mentioning, under his leadership, all of these units achieved 'Gold Standard' Status, 
recognizing their professional excellence in conducting operations. 
Another project worthy of being highlighted was his assignment as Topsides Manager 
for Project Resource Company, seconded to ... a US $2.2 billion oil, gas 
and capital project, where (the petitioner] led the preliminary engineering work. 
He managed the project through to the flawless execution of a US $2 million 
engineering contract which was completed below budget and ahead of schedule .... 
(H]is extensive experience in the construction and start-up of offshore facilities 
played a key role in the successful outcome of this project. 
who claimed the title "business manager" but did not identify his current employer, 
previously worked with the petitioner while Mr. was a manager for various construction 
companies. He 
stated that the petitioner "has proven to be a highly respected Subject Matter Expert 
(SME) in the field of project management in domestic and international work locations .... Only a 
handful of talented individuals have such a long display of accomplishments working for some of 
the world's largest oil companies." Mr. discussed various projects where he worked with 
the petitioner, but for the most part described the petitioner's work in general terms. The most 
detailed discussion 
was as follows: 
In 2007 ... I was aware that had hand-picked [the petitioner] to participate 
from a technical project management basis in the Engineering Department for 
Company's plants assigned under 
his leadership. . . . (The petitioner] was the force behind the successful 
implementation of the Front-End-Loading Foundation for the project. 
The writers identified above provided varying degrees of detail about the petitioner's past work , but 
the petitioner did not submit primary documentary evidence to allow for an objective determination 
that the petitioner's contributions have influenced the field as a whole, or otherwise stand out to an 
extent that would warrant a waiver of the job offer requirement. 
The director issued a request for evidence (RFE) on May 7, 2013 , stating that the petitioner's initial 
submission did not establish eligibility under the NYSDOT national interest test. The director 
requested "evidence that the [petitioner] has a past record of specific prior achievement with some 
degree of influence on the field as a whole ." 
The RFE response repeats the prior assertion that any influence is more than "no influence" and, 
therefore, "some influence." Not all influence is "influence on the field as a whole," which is the 
phrase found in NYSDOT at 219, n.6. In discussing the paragraph that yielded the quoted footnote, 
the petitioner's response included this assertion: 
It must be remembered that the criterion of having to show some influence on the 
field is a footnote to a paragraph stating that zero accomplishment outside of 
academic studies disqualified an applicant for NIW consideration. A footnote cannot 
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NON-PRECEDENT DECISION 
assume more power than the paragraph it is attached to, i.e., entirely change the 
criterion of the paragraph itself. The paragraph in question is not designed to exclude 
any other category of applicant other than persons with absolutely no 
accomplishments .... The footnote is not designed to create a quasi extraordinary 
abilities standard. 
(Emphasis in original.) The footnote in question relates to this paragraph from NYSDOT: 
The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. While the 
national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the 
national interest. [The quoted footnote appears at this point.] The inclusion of the 
term "prospective" is used 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. 
/d. at 219. The footnote does not appear after the reference to "no .. . prior achievements." Rather, 
it appears at the end of the second sentence in the paragraph, referring to "the alien's past record. " 
In this context, it is evident that NYSDOT should not be construed to mean that the only people 
ineligible for the waiver are recent graduates "with no demonstrable prior achievements." The 
reference to "no demonstrable prior achievements" relates not to eligibility for the waiver, but rather 
to the sense of the word "prospective" as it derives from section 203(b )(2)(A) of the Act. That is, 
the petitioner cannot simply promise that his future work will benefit the United States and serve the 
national interest; he must substantiate this assertion with a record of prior achievements. The 
alternative construction proposed in the petitioner's response to the RFE, that any and all post­
collegiate experience qualifies one for the waiver, is untenable in the fuller context of NYSDOT as.a 
whole. 
In a separate letter (much of which repeats or paraphrases his earlier introductory letter), the 
petitioner stated that his "implementation of new and/or improved processes/ methodologies ... [is] 
intrinsically national in scope because their use is similar in any location of the country and their 
results directly affect the wellbeing of any American" (emphasis in original). The petitioner 
repeated his claim of "extensive technical experience " in the "Exploration & Production of 
Unconventional Oil," "Production of Synthetic Crude Oil," "Optimization of Gas Production and 
Processing" and "Production of mature oil fields using secondary recovery techniques" (emphasis in 
original). The petitioner does not claim to have created or improved the processes and methods, 
only to have experience in implementing them. Job-related training in a new method, whatever its 
importance, cannot be considered to be an achievement or contribution comparable to the innovation 
of that new method. NYSDOT, 22 I&N Dec. at 221 n.7. The petitioner does not influence his field 
simply through familiarity with techniques developed by others; he must establish the impact and 
significance of what he has accomplished using those techniques. 
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Page 11 
The petitioner cited statistics regarding the reliance of the United States on foreign sources of 
petroleum, and stated that "U.S. production should increase 50% to fulfill energy needs ... . The 
only way to handle this additional production and meet energy requirements is to build new facilities 
and improve those in service," for which "specialized project managers are top priority. No project 
is feasible without Project Managers .... Time is of the essence and Labor Certification is time 
consuming." This assertion does not distinguish the petitioner from other project managers. Rather, 
the petitioner argues, in effect, that project managers such as himself should be exempt from labor 
certification because they are project managers. This assertion 
addresses the intrinsic merit of the 
occupation, but Congress has not established any blanket waiver for project managers as it did for 
certain physicians under section 203(b)(2)(B)(ii) of the Act. Without such express congressional 
action, USCIS will not establish blanket waivers for workers in a given occupation. See NYSDOT, 
22 I&N Dec. at 217. The assertion that qualified project managers are in short supply would tend to 
indicate that an employer would be able to secure labor certification. See id. at 218. 
The petitioner submitted a second set of letters from the same individuals who had signed the letters 
submitted previously. Some of the letters are simply photocopies of the letters submitted previously ; 
others are revisions of the earlier letters. 
in his first letter, had claimed that the petitioner "quickly became the most sought 
after authority in Latin America Business Units, when it came to the subject of Teaching 
'' His second letter, dated July 20, 
2013, added a description of as "the company methodology to formulate, select and manage 
projects sustaining a solid system for the corporation budget in exploration and production 
ventures." Mr. asserted that the petitioner had to pass "a strict selection process" and was, for 
a time, "the only [official] qualified to provide the required training for other employees in 
the business unit." There is no evidence that the petitioner developed the , only that he is 
qualified to train others in the process. Teaching a pre-existing method, however complex, is not 
influence on the field. 
In a passage added to her previous letter, provided further details about the 
petitioner's involvement in the In the second version of the letter, Ms. 
provided two very different figures for the cost of the project. She first repeated her original claim 
that the project cost $45 million , but in the next paragraph she referred to the same project as "a 3 
billion US$ endeavor," a figure nearly 67 times greater than the original claim. 
The assignment to build the gas and diluent pipelines for the Hamaca Project ... was 
one of the most critical components of the infrastructure development. ... 
[The petitioner's] execution strategy was to implement two parallel project schedules: 
one prepared by the major engineering and construction contractor, and a second one 
prepared ... from the company owner's perspective (Ameriven) .... At the time, this 
approach was strongly criticized within the company; however ... [t]he result was 
clear; not only the completion of the pipelines was achieved on time and under budget 
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but it was the only project in the 
others had budget deviation of 300%! 
NON-PRECEDENT DECISION 
program that achieved such results, while 
In his first letter, had discussed some of the petitioner's projects. In his revised 
letter , bearing the same digitally reproduced signature, he added passages to two paragraphs : 
[T]he • J project proved capabilities of Venezuelan engineering companies 
and fabrication yards to fully design and build complex modularized oil production 
systems and paved the road to the rest of the modularization projects in the entire 
nation and for other Latin-American oil producing countries . . .. 
Regarding the petitioner's previously discussed role in the 
"This initiative became pivotal , and was true evidence of [the 
knowledge for all aspects of the project management discipline." 
project, Mr. stated: 
petitioner's] vision and holistic 
stated that the petitioner's "successful start-up of a Gas Lift Facility," described in his 
earlier letter, is one of the petitioner's "most outstanding contributions to the oil and gas sector." 
Mr. provided technical details about the advantages of the gas lift technique, in which gas is· 
injected into a mature well "to reduce oil density to a point in which reservoir pressure is able to 
push up oil and the well returns into production." 
Mr. then provided technical details about the Project , stating that the "project 
ranked first in the country in many aspects ." He continued: 
One of the most important milestones achieved by [the petitioner] was avoiding the 
production decline in areas with more than 50 years of operations, successfully 
guaranteeing the stability and increase of its run life. 
engineering team led by [the petitioner] was key element [sic] in the 
implementation of the integrated design .... Also, the engineering team was pivot al 
in transferring the expertise required to the local shops to build the entire structure, 
the module equipment and control systems and most important to collect the lessons 
generated from the completion of the first module and quickly transfer those lessons 
on the fly to the design and construction of the other three modules. 
Mr. restated his opinion that the petitioner "is among the most brilliant and diversified 
Project Management Experts in the field" that Mr. had encountered. 
The writers described the petitioner's work on several projects and portrayed the petitioner as a 
highly skilled project manager. They did not, however , demonstrate the petitioner's influence on his 
field (for example, through the introduction of new procedures or methods that others have 
subsequently adopted). The assertion that the petitioner is more highly skilled than others in his 
field is not sufficient to qualify for the national interest waiver, because, by statute, aliens of 
exceptional ability (with "a degree of expertise significantly above that ordinarily encountered") 
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Page 13 
remain subject to the job offer requirement. See section 203(b )(l)(A) of the Act and 8 C.F.R. 
§ 204.5(k)(2). 
The director denied the petition on September 5, 2013, stating that the petitioner had established the 
intrinsic merit of his occupation, but not that the benefit from his employment would be national in 
scope or that he has a past history of achievement with some degree of influence on the field as a 
whole. The director quoted several of the letters in the record, but found that these letters do not 
establish eligibility for the waiver. The director also stated: "a waiver of the labor certification 
process cannot be granted because it is 'time consuming' and something of an inconvenience to the 
beneficiary, as is argued in the evidence." See NYSDOT, 22 I&N Dec. at 223. 
The petitioner filed a motion to reopen and reconsider on October 7, 2013, including a legal brief 
and copies of two letters. One Jetter is a copy of , July 20, 2013 Jetter, already 
discussed above. The other letter . is from president of 
Mr. stated: 
is the second largest exploration and producing company in our industry. 
Like all industries the oil and gas upstream sector has certain companies that innovate 
and set practices that quickly become adopted throughout the industry. . . . is 
a pacesetter in heavy oil operations and most companies in our industry have adapted 
practices that were originated by A topic of great concern in our industry is 
that of maximizing recovery of hydrocarbons from the reservoir, which may be 
improved in heavy oil reservoirs through the use of new technology. This is 
exceptionally important due to the lack of experienced engineers in heavy oil for our 
industry. This is an area where [the petitioner] has had a great deal of individual 
input benefiting that has been adopted throughout our industry .... Due to 
; prominence and [the petitioner's] accomplishments . . . , it is my 
professional opinion that he has had influence on the field of engineering in a more 
than nominal way. Since early in his career, he has always held Leadership Positions 
in very important . . . industries .... Additionally [the petitionerl successfully 
developed one of the industry's leading technical developments the to increase 
the quantity of heavy oil in gasoline. 
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 I&N Dec. 791, 795 (Comm'r 1988). However , 
users is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. !d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS 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 Sofftci, 22 I&N Dec. 165. 
(b)(6)
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Page 14 
In this instance , Mr. made claims of fact (rather than expert opinion) that the record does 
not corroborate. He asserted, for instance, that "the project 
.. . has been widely written about in our industry," but the record contains no writings on the 
subject. The record shows that the petitioner has been involved with the project, but it does 
not show the extent to which the petitioner has developed or shaped the process, as opposed to 
putting to use procedures and methods developed by others. The "lack of experienced engineers " is 
a shortage issue that does not qualify for the waiver under NYSDOT. 
In the legal brief submitted on motion, the petitioner contested that director's use of "concepts such 
as 'significant benefit to the field of endeavor' and contributions of 'unusual significance ,"' stating 
that these criteria relate to the more stringent immigrant classification for aliens of extraordinary 
ability at section 203(b)(l)(A) of the Act. The petitioner repeated the assertion that "he IS 
substantially more qualified than the majority of his peers with the same minimum qualification. " 
The director affirmed the denial of the petition on January 7, 2014, stating: "USCIS cannot accept 
the petitioner's assertion that the proposed benefit of his presence in the United States will inherently 
be national in scope simply because he works in the petroleum industry." The director also 
concluded that the petitioner relied on "a narrow interpretation of NYSDOT" and an "evidentiary 
standard ... [that] would clearly defeat the purpose of waiving the labor certification process for 
only those whose benefit to the national interest decisively outweighs the inherent national interest in 
protecting U.S. workers through the labor certification process." The director stated that it would be 
"unacceptable" to approve waivers for every foreign worker with any "kind of experience . .. other 
than nothing at all." 
On appeal, the petitioner submits a copy of ; letter, a new letter from the petitioner, 
and a legal brief. The petitioner, in the brief, argues that the director erred in finding that the benefit 
from the petitioner's work will not be national in scope under the NYSDOT standard. The relevant 
portion of the precedent decision reads as follows: 
While the alien's employment may be limited to a particular geographic area, New 
York's bridges and roads connect the state to the national transportation system. The 
proper maintenance and operation of these bridges and roads therefore serve the 
interests of other regions of the country. Moreover, nothing in the record indicates 
that proper maintenance of New York's transportation infrastructure would have an 
adverse impact on the interests of other regions. We therefore conclude that the 
occupation in this case serves the national interest. 
/d. at 217 (footnotes omitted). The "national scope" standard applies to the occupation, rather than 
to the petitioner's demonstrated accomplishments within that occupation. An oil field in Oklahoma, 
for instance, does not produce oil exclusively for use in Oklahoma, and 
the record indicates that the 
petitioner plays a significant role in operations onsite. By this standard, the petitioner has 
established that the benefit from his occupation is national in scope. This benefit arises from the 
work performed, and any worker qualified for the position would produce benefits in this way. 
Therefore, the nature of the petitioner's occupation satisfies the "national scope" test but does not 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
establish that the petitioner qualifies for benefits beyond those available to other foreign workers in 
the same occupation. 
Regarding the third and final prong of the NYSDOT national interest test, the petitioner, via the legal 
brief, asserts that he "was required only to show he was substantially more qualified , not that he is 
substantially more qualified because of contributions of significant benefit or unusual significance. " 
All aliens of exceptional ability must "substantially benefit prospectively ... the United States." 
Section 203(b )(2)(A) of the Act. Evidence of recognition for achievements and significant 
contributions to the industry or field can provide partial support for a finding of exceptional ability . 
8 C .P.R. § 204.5(k)(3)(ii)(F). Therefore, "significant contributions " are not sufficient, by 
themselves, to establish exceptional ability; and the "substantial benefit" expected of all aliens of 
exceptional ability does not warrant a waiver of the job offer requirement. The preamble to the 
implementing regulations addressed this issue: 
Some commenters also asked that the phrase "in the national interest" be defined . 
One commenter suggested that the phrase should apply to any alien who would 
substantially benefit prospective! y the national economy, cultural or educational 
interests, or welfare of the United States. The Act itself requires this showing of all 
aliens seeking to qualify as "exceptional, " but adds the "national interest" test to 
permit a job offer waiver for certain aliens who have already satisfied the 
"prospective national benefit" test. The Service , therefore, cannot equate the two 
standards. Congress has not provided a more particular definition of the phrase in the 
national interest. The Service believes it appropriate to leave the application of this 
test as flexible as possible, although clearly an alien seeking to meet the standard 
must make a showing significantly above that necessary to prove "prospective 
national benefit." 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 will be 
judged on its own merits. 
56 Fed. Reg. 60897, 60900 (November 29, 1991). It is plain from the above sources that the 
petitioner cannot qualify for the national interest waiver simply by claiming that his qualifications or 
credentials exceed those of minimally qualified United States workers. 
The brief includes a repetition of the discussion that NYSDOT excludes "an alien with no 
demonstrable prior achievements ," and that the petitioner "clearly has many demonstrable prior 
achievements." The petitioner has taken a short section of NYSDOT out of context to imply, 
incorrectly, that any level of achievement above "no demonstrable prior achievements" is the threshold 
for the waiver, and that therefore the accumulation of past experience necessarily qualifies a foreign 
worker for the waiver. As explained previously, the phrase "no demonstrable prior achievements" 
refers to the sense of the adverb "prospectively, " not to the bar that a petitioner seeking the waiver must 
clear. 
In his own statement on appeal, the petitiOner asserts that his "specific knowledge, skills and 
professional background have led to important contributions and a legacy within the field ." The 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
petitioner asserts that he has successfully managed past projects and is well placed to succeed in new 
endeavors, described for the first time on appeal. The director did not dispute that the petitioner, 
with the title "project manager," is able to manage projects for his employer, sometimes of 
considerable size. The petitioner, however , has not established that he has achieved results beyond 
the capabilities of other qualified project managers. Details about his projects , in isolation , allow no 
such comparison . Furthermore, assertions about the importance of the tools of his trade, such as 
and the gas lift technique, do not establish the petitioner's influence on his field as a whole. 
Mastery of tools invented elsewhere is not influence, and the petitioner has not shown that he 
invented, developed, or significantly improved these tools and methods. 
The petitioner has contended that his successful experience with a major oil company is, virtually by 
definition, influence on the field as a whole. The record does not support this claim. The petitioner 
has described his past work, but has not submitted objective evidence of its importance or influence 
relative to what other competent and qualified project managers have achieved in the same field. 
The petitioner has not established a past record of achievement at a level that would justify a w aiver 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"). 
As is clear from 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. 
We will dismiss the appeal for the above stated 
reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 
1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not 
met that burden. 
ORDER: The appeal is dismissed.