dismissed EB-2 NIW Case: Petroleum Engineering

(b)(6)
DATE: FEB 2 1 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration · 
Services 
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 ofthe 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 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:/Jwww.uscis.gov /forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)-Ron Rosen 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner seeks classification under section 203(b)(2) of the hnmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions with post-baccalaureate experience 
equivalent to an advanced degree. The petitioner seeks employment as a senior process engineer in the 
petroleum industry. Materials in the record identify his employer variously as and 
affiliated entities, ~ ~ _ - · 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 with the defined 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 brief from counsel and copies of previously submitted letters. 
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 with progressive 
post-baccalaureate experience equivalent to an advanced degree under the regulation at 8 C.P.R. 
§ 204.5(k)(3)(i)(B). 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 
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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, P.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. !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. 
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 June 4, 2012. The 
petitioner submitted copies of certificates establishing his academic and vocational training, 
including several corporate in-house training programs , membership certificates from professional 
organizations, and documentation of his past compensation. The petitioner submitted these materials 
primarily to support his claim of exceptional ability in the sciences. Under section 203(b )(2)(A) of 
the Act, aliens of exceptional ability in business are typically subject to the job offer requirement. 
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The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability in business" as "a degree of 
expertise significantly above that ordinarily encountered in business." Therefore, such a degree of 
expertise is not sufficient by itself to warrant the national interest waiver. 
In an introductory statement, counsel stated: 
NYSDOT devotes substantial discussion to the test as to whether an NIW [national 
interest waiver] applicant may have the labor certification process waived. However, 
there will be no labor certification in this case as the applicant will be self-employed, 
notwithstanding that he has already secured a potential client, a situation which moots 
all labor certification discussion and is recognized under NYSDOT, Id at 218 
footnote 5. 
The cited portion of NYSDOT reads: 
The Service [now US CIS] 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 others in the same field. 
Counsel noted that the petitioner has spent "almost the entirety of his career" in supervisory, 
managerial, or senior roles, "demonstrat[ing] that he is substantially more qualified than those with a 
bachelor's degree and five years' experience." Counsel also quoted NYSDOT at 219 n.6, which 
called for "a past history of demonstrable achievement with some degree of influence on the field as 
a whole." Counsel stated: 
"Some" degree of influence is certainly less than "major" or even "significant" 
influence." 
In any event the clear meaning of this portion of NYSDOT 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. ... The Service in this regard is 
respectfully requested to take into account applicant's leadership role with the 
Mexican petroleum company PEMEX to reduce sulfur emissions, leading an 
assessment of the Brazilian national oil company's storage capacity, single handedly 
designing operational guidelines and other projects for the Venezuelan national oil 
company etc .... To do so many things at such a high level for so many countries 
clearly has had "some" influence on the field. . . . [T]he requirement of "some 
influence["] means more than "no" influence and is not comparable to the significant 
contribution standard of an EB1 extraordinary ability case. 
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NON-PRECEDENT DECISION 
... NYSDOT excludes persons fresh out of graduate school and allows flexibility as 
to all other applicants. Applicant has had some as opposed to no influence on the 
field and thus is not subject to denial on that ground. Applicant has shown that his 
work will have intrinsic merit, will be national in scope and that he is substantially 
more qualified than the majority of his peers. 
The initial submission included a 24-page statement, dated May 1, 2012, with the petitioner's 
digitally reproduced signature. The petitioner stated: 
My professional success comes from a proven track record in successfully designing 
and implementing pioneering Process Engineering Methodologies that have 
optimized oil refining operations .... 
Throughout the whole length of my professional career I have occupied key positions, 
such as Senior Process Engineer, Planning and Economics Supervisor, Process 
Engineering Manager, Interface-Integration 
Coordinator, among others, with some of 
the leading global corporations in the oil and natural gas industry, including 
, ) -one of the largest suppliers of oil to the US and the world's 
fifth largest crude oil producer; ~ · ~ · : ~ _ -----' • 
, _ a Venezuelan leading engineering firm focused in developing projects 
for the oil business in Venezuela & Middle East; and currently _ , a 
world leader in design, construction and installation of marine structures and process 
plants. I have also developed leading positions in the execution of important oil 
refining-petrochemicals projects for __ . __ -, _ _ _ _ _ - the biggest COmQany in 
Brazil and the gth biggest in the world in market value ... and recently for _ 
the biggest enterprise in Mexico, and one of the few oil companies in the world that 
develops all the productive chain of the industry, upstream, downstream and final 
product commercialization. 
Currently, I work for a leading global provider of engineering and 
construction services, techrrblogy products and integrated solutions to the oil & gas, 
refining & chemicals, mining & metals and power generation industries; and 
seconded on a full time basis to ~ ~··-~·- ,---- - --- - ___ ___ _ ___ ___ / 
... [The] [is] a US $5,000 Million Dollar [sic] Project, part 
of "Clean Fuel Initiative," that aims to ramp up the production and 
distribution of Ultra-low Sulfur Diesel among Mexico's largest and most polluted 
cities. . . . To accomplish the preceding, has launched a massive 
"Infrastructural Modification Campaign " on six of its largest refineries in the country 
(Mexico) in order to generate the expected results. 
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NON-PRECEDENT DECISION 
As Interface/Integration Coordinator, I manage all process engineering activities 
related to the integration of new/revamped Plants Processes ... to the existing 
refineries' facilities ... [and] currently supervise 16 Senior Process Engineers .... 
Presently, while working for ,· _____ _____. ... , I have accomplished several 
milestones, including: 
Successfully leading the Process Engineering Work on 
Project. ... The project investment ... will be accomplished in "phases" starting in 
2010-12 with the Conceptual Engineering, where I am actively involved, followed by 
Basic and Detailed Engineering in 2013; construction in 2014-15; and final start-up of 
operations toward the end of 2015. 
On this regard, I am responsible for the successful execution of all the "Conceptual 
Engineering" to be applied in six refineries . 
. . that has chosen to "re­
condition" in order to produce its much cleaner fuel. Moreover, the phase of the 
project that I am overseeing plays a critical factor in the successful completion of this 
US $5000 Million-Dollar [sic] venture, since it is liable for the flawless integration of 
more than 65 newly built and revamped plants ... into each of the refineries' existing 
infrastructure. 
(Footnotes omitted.) The petitioner described various past projects in technical detail, and stated that 
his work led to several recommendations. In some instances, the petitioner specifies that the clients 
implemented the recommendations, but in the case of a project he stated only that his 
"recommendations were greatly appreciated and taken into consideration by the Project Client." 
The petitioner asserted: 
My knowledge and skills in oil refining processes and technologies, with emphasis in 
clean fuel production, are among the best in the energy industry, worldwide. I am in 
the position to lead highly intricate and critical refining projects that demand 
unparalleled level of knowledge and an acute implementation of technical analysis. 
Moreover, my extensive professional background in the energy industry has provided 
me with the unparalleled capacity to provide leading edge improvement 
recommendations in energy efficiency, operational cost reduction, and environmental 
safety strategies that will allow strategically recovering, and further economic 
improvement of any company, sector, or government. ... 
Only a handful of experts in the world, such as myself, have the skills, abilities and 
knowledge to ultimately help [the] energy industry to tackle the above mentioned 
challenging tasks, while optimizing the nation's own resources. 
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The petitioner's own assertions regarding the significance of his work cannot establish eligibility. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft of California , 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The petitioner stated: "As an expert in my field, I have authored several written works that have 
contributed and guided other professionals in my field, and have been used as a reference." The 
petitioner listed six manuals, technical reports, and presentations at corporate events, and two 
"papers developed for ... college [that] are used as reference by the students of the institution." The 
petitioner submitted a partial copy of one of the eight listed items. "Development and evaluation of 
a project for the production of high-octane gasoline (100-130 octanes) based on Alkylation feed," is 
an undergraduate thesis that the petitioner completed in 1983 at the University of 
Venezuela. The record does not contain confirmation from the university that the petitioner's paper 
is "used as a reference." The petitioner did not submit copies of the other listed items, or 
documentary evidence of their existence. 
The petitioner submitted copies of several witness letters dated December 2010 and January 2011. 
now construction coordinator for '--~----
stated: 
' stated: 
[The petitioner] is a relentless and natural-born problem-solver, with an extensive 
knowledge of heavy crude oil processing, chemical engineering, and a solid technical 
foundation, which have strengthened, even farther, his managerial skills .... I first 
became aware of [the petitioner's] professional excellence in his field of expertise as I 
was appointed Manager of the 
During this term, [the petitioner 's] team was under my supervision. Moreover, I must 
say that his expertise in the subject of ethers, and more specifically J and 
[sic]. The preceding project, worth approximately US $55 Million Dollars 
[sic] allowed the opportunity to establish a strong presence in the US market. 
It is noteworthy to mention that this was a pioneering process, and as such, it 
generated further work aimed at identifying adequate engineering process studies that 
would meet the current needs of the project. On this line, [the petitioner], as leader of 
[the] process engineering team, was involved in every phase of the operation, from 
Basic and Detail Engineering to the development of the pilot plant's tests, and the 
construction of a fully functional system- · --~- ___ __ __ ___ production infrastructure. 
The successful outcome of this project was the subject of countless recognition by 
' upper management, and the Venezuelan oil industry as a whole. 
,roduction/planning/allocation supervisor for the 
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[I]n 2004 ... [the petitioner] was appointed as Senior Planning & Economics Analyst 
at and was subsequently seconded to the . 
~~-- . , , a joint venture between 
The 
" 
was, at the time, one of the largest heavy crude oil processing 
plants in the Venezuela [sic], with a refining capacity of 180,000 barrels per day. 
During his term at [the petitioner] was responsible for supporting all 
engineering requirements for successful completion of operational performance 
appraisals, warranty test run preparation, and economic evaluations on process 
changes in Hydrotreating/Hydrocracking and Delayed Coking Units. During his 
tenure at one of the most exceptional contributions made by [the 
petitioner] was the development and implementation of the reliable and accurate 
"Monthly Operational Guidelines" . 
. . [that] serve as manuals for the operations 
personnel of the upgrader to adjust the production capacity of the plant via the 
optimal configuration of the infrastructure; hence maximizing revenue. The 
optimization is accomplished through the use of highly complex model[s] that include 
information on the availability and prices of raw materials, current market demands 
and prices for the products as well as operational limitations and other constraints. 
[The petitioner's] timely and accurate development of the "Monthly Operational 
Guidelines " helped _ - to reach unprecedented levels 
of revenues in the neighborhood of US $188 Million Dollars [sic.] 
During his tenure at . .._ ... ---, [the petitioner] also embarked on several other 
challenging tasks that required from him, among other things, to single-handily [sic] 
manage large, and very intricate, technical projec ts for Most of the projects 
that were implemented as a result of these initiatives contributed to 
profitability. 
The petitioner submitted a partially translated copy of the "Monthly Operational Guidelines" for 
January 2005. The document listed the company's objectives for the month and contained several 
tables and charts. 
[The petitioner] is a renowned authority in the 
which were widely used in the production of 1 
,_._, ..... - .. --·-· stated: 
are chemical compounds designed to increase the octane of gasoline; thus 
improving the power and economic characteristics of engines, while simultaneously 
lowering carbon monoxide and hydrocarbon contents. Moreover, under his careful 
lead, both of the previously mentioned technologies were successfully implemented 
at . Hence, creating Millions of Dollars in additional profits to 
. between the years of 1998 and 2000. 
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... [The petitioner], as one of the highest technical authorities in the abovementioned 
subjects, was in charge of providing technical training to the operations and 
maintenance personnel operating these production units. On this line, I personally 
witnessed how he strategically covered a wide, and critical, range of issues including 
processes, planning and monitoring of the units . 
. . . He is fluently [sic] in English and Spanish, with international exposure, 
knowledge of well-known worldwide service contractors and process licensors, in­
depth familiarity with Latin American Culture and the global crude oil refining 
business. 
- --r--- --- - ~ - --~-- , stated: 
[The petitioner] is among the most brilliant and diversified oil refining process 
experts in the energy field that I have come across in my life. [The petitioner's] 
tremendous diversity as a top class process engineer is matched only by his 
prominence in each field of endeavor. During his tenure at he was 
always top ranked among the entire corporation, with complete confidence of upper 
management. Proof of the preceding was his assignment, as Senior Process Engineer, 
to develop and lead a complex assessment study on __ _ 
storage capacity, when faced with Processing Units 
Shutdown and Start-up events. The foregoing required from [the petitioner] to 
closely analyze key plant processes such as: Atmospheric D[i]stillation, Vacuum 
Distillation, Naphtha Hydrotreating, Catalytic Cracking, Steam Cracking, and 
Aromatic Hydrocarbon; just to name a few. In addition, he single-handily [sic] 
conducted a detailed assessment study on more than 80 storage tanks, each with a 
capacity to hold 633000 cubic meters (or 4 million Barrels)[.] 
Moreover, [the petitioner's] groundbreaking findings and subsequent 
recommendations to optimize storage projections/logistics activities, and even a 
contingency plan to channel excess product via sales or redistribution to 
other facilities made a positive impact on the company's outlook and 
growth strategy. 
stated: 
[The petitioner's] extensive knowledge of crude oil, extra heavy crude oil and natural 
gas refining processes, in addition to his outstanding managerial and organizational 
skills, have made him a walking wealth of knowledge and the right candidate for any 
petrochemical-related operation that demands the best in his field of expertise. I met 
[the petitioner] during his tenure at --- At the time, he 
was seconded to one of the world's leading providers of technical, 
project and operational support services to the energy industry. 
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In fact, due to his exceptional work on the Aromatics Unit, [the petitioner] was 
assigned to develop the HAZOP [hazards and operability] studies for two different 
plants of the _ · commonly 
known as " ____ ____ . . .. As appointed "Specialist " to both projects, he was solely 
accountable for generating and further communicating to upper management acute 
information on the level of progress , timelines , and action plans in order to meet the 
company's objectives. 
Needless to say, his flawless personal performance in the foregoing, while exceeding 
all expectations, made him the reci ient of countless praises, not only from his 
colleagues, but also from l _ ___ __ _ -~J management. 
stated: 
[The petitioner 's] extensive managerial and business acumen have been constantly 
sought out, and praised, throughout his whole career with the corporation. Proof of 
the foregoing is his initial involvement as Interface/Integration Coordinator and 
recently as OSBL (Outside Batter Limit) Process Supervisor for "Ultra­
Low Sulfur Diesel " Project , which is part of the company's revolutionizing "Clean 
Fuels" Scheme .... 
The project in all is worth approximately US $5000 Million Dollars, and it is slated to 
start operations at the beginning of 2014. 
On this line, anyone of merit at can support the magnitude of [the 
petitioner ' s] professional accomplishment in these particular events. 
The petitioner submitted a printout of "Contracts & Projects Tracker : April 2012" from the online 
publication Process Engineering. The document mentioned recent agreements into which 1 
Solutions had entered with other companies, but there was no apparent specific mention of the 
petitioner or any of the projects described in the witness letters. 
The director issued a request for evidence (RFE) on September 4, 2012. The director stated that the 
petitioner's initial submission "does not establish the beneficiary has a past record of performance 
which justifies projection[s] of future benefit to the United States." The director noted a lack of 
documentary evidence to establish the nature and extent of the petitioner's contributions to his field. 
In response, counsel repeated the assertion that NYSDOT requires only "some influence on the 
field," and that the petitioner need not establish the extent or significance of that influence . Counsel 
also repeated the observation that "NYSDOT specifically states that self-employment for NIW 
applicants is allowed." 
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NYSDOT, consistent with the statute, acknowledges that a self-employed alien can qualify for the 
waiver, but there are no special provisions for self-employed prospective immigrants in either the 
statute or the regulations. Just as the job offer requirement (including labor certification) protects 
employment opportunities for U.S. workers (see NYSDOT at 218), the absence of a statutory 
provision allowing for the automatic immigration of self-employed aliens protects the opportunities 
of self-employed U.S. workers in terms of competition for customers and clients. 
Counsel asserted: "it is apparent that applicant's many accomplishments necessarily had 'some' 
influence, 
just as it is apparent that applicant is more qualified than his colleagues." Counsel did not 
elaborate by providing any details or citing specific evidence in the record. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matt er of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). 
The petitioner submitted a new statement, dated December 5, 2012. Much of the statement repeats 
or paraphrases the petitioner's earlier statement of May 1, 2012. Other sections of the statement are 
quotations from the RFE or from witness letters. Apart from these repetitions, the petitioner asserted 
that the accomplishments listed in his statement are "evidence that [he has] influenced the field as a 
whole," and that he had submitted "[t]estimonials from independent experts currently in high 
rank[ing] positions. " The petitioner did not explain how the witnesses were independent
, when 
those witnesses indicated that they had worked with the petitioner, or for his employers, in the past. 
The petitioner submitted a graph showing that "less than 30% of the oil and gas professionals fall in 
the ages below 40," while the comparable figure in "a technology focused industry" amounts to 
75%. The petitioner stated: "This pattern ... means that there are not enough professionals to 
replace previous generations of professionals when the next round of high oil and gas demand 
arrives." The petitioner was 52 years old at the time he filed the petition. A claimed shortage of 
trained professionals in a given field is not grounds for the national interest waiver. See NYSDOT at 
218. The petitioner warned of "catastrophic consequences to the nation's economy" "[i]f the U.S. 
petrochemical industry ceased to exist," but he did not demonstrate that the continued existence of 
that industry depends on his receiving the national interest waiver. 
In contrast to counsel's discussion of self-employment , the petitioner stated: "I have an honest and 
solid job offer issued by A December 3, 2012 letter from regional 
manager of 1 stated: "We currently recruit for a wide range of engineering industries . 
. . . We have talked with [the petitioner[] about our potential clients and projects ... and we are 
confident he will empower our future in this industry." A similar letter, dated December 17, 2010, 
had accompanied the initial filing of the petition. 
The director denied the petition on May 7, 2013. The director acknowledged the substantial intrinsic 
merit of the petitioner's occupation, and that the benefit from that employment would be national in 
scope. The director found that the petitioner had not established a history of influential achievement 
that would satisfy the remaining third prong of the NYSDOT national interest test. The director 
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Page 12 
acknowledged the petitioner's evidence, but stated that the submitted materials did not establish 
eligibility for the waiver. 
The director stated that the witness letters establish the petitioner's experience in his field and show 
that "[h]e is well thought of as an employee and as a colleague," and that he has "[e]xceeded the 
expectations of [his] employers." The director concluded that the record lacks documentary 
evidence to support the witnesses' claims about the significance of the petitioner's achievements. 
The director stated that the petitioner had not shown that his "contributions in the field are of such 
unusual significance that the petitioner merits the special benefit of a national interest waiver." 
Counsel, on appeal, cites Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) as stating: "Neither 
USCIS nor an [sic] AAO may unilaterally impose novel substantive or evidentiary requirements 
beyond those set forth in 8 CFR 204.5." Id. at 1033. The Ninth Circuit Court of Appeals 
subsequently withdrew the cited decision and issued a superseding decision, Kazarian v. USCIS, 596 
F.3d 1115 (9th Cir. 2010). The superseding decision contained the same quoted passage at 1121. 
Counsel maintains that NYSDOT requires no more than "some degree of influence on the field as a 
whole," and that the director's added "unusual significance" requirement "is a violation of the 
Kazarian rule." Counsel states: '"Some' means more than zero. It is self-evident that applicant has 
had more than zero impact." 
NYSDOT, read in its entirety, does not indicate that influence on the field secures the waiver without 
regard to the extent of that influence, nor does it indicate that the waiver is available to all except 
"persons fresh out of graduate school" whose qualifications exceed the minimum for a given 
position. By statute and regulation, a person who will substantially benefit prospectively the United 
States, by virtue of a degree of expertise significantly above that ordinarily encountered in a given 
field, remains subject to the job offer requirement. Section 203(b )(2)(A) of the Act; 8 C.F.R. 
§ 204.5(k)(2). 
Furthermore, it is not "self-evident" that the petitioner has influenced the field as a whole. The 
petitioner's work for a given employer may have internal influence on that employer, but the 
petitioner has not established his impact on "the field as a whole," which is the standard in NYSDOT 
at 219 n.6. 
Documentation in the record shows that the petitioner has undertaken projects for his various past 
employers, but these exhibits do not establish that the petitioner 's work has influenced his field (for 
example, by introducing new practices adopted by other companies). The petitioner's claims of 
influence rest largely on witness letters, resubmitted on appeal and quoted in counsel's appellate 
brief. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not 
only encourage, but require the introduction of 
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Page 13 
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). 
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; users may, as above, evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795. users may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. !d. at 795; see also 
Matter of Soffici, 22 r&N Dec. 165. 
The witnesses are individuals who have worked with the petitioner in various capacttles. 
Furthermore, the letters contain claims of fact that the record does not otherwise corroborate. For 
instance, stated: "The successful outcome of this project was the subject of countless 
recognition by PDVSA's upper management, and the Venezuelan oil industry as a whole." 
provided no further details about this claimed recognition. asserted that the 
petitioner's "timely and accurate development of the 'Monthly Operational Guidelines' helped 
· _ ~ ' to reach unprecedented levels of revenues in the neighborhood of 
US $188 Million Dollars [sic]." The record documents neither the specific amount claimed, nor the 
claim that the petitioner's work resulted in "unprecedented levels of revenues." The witnesses did 
not establish that the petitioner's influence extended beyond his employers. Counsel asserts that, 
because the petitioner has held several different jobs, "he has ... necessarily had some influence 
beyond a single employer." "Beyond a single employer," however, is not the same as "the field as a 
whole." 
Furthermore, apart from general similarities in the format of the various 
letters (including overall 
structure and the inclusion of most contact information on separate sheets rather than on the letters 
themselves), some letters contain the same errors and/or idiosyncracies, such as the use of the term 
"single-handily" instead of "single-handedly," sentences beginning with "On this line ... ," arbitrary 
capitalization of words such as "Million" and "Sulfur," and the redundant use of both a dollar sign 
("$") and the word "Dollars" when describing a sum of money. These similarities are consistent 
with common authorship, in whole orin part, of the witness letters. Cf Mei Chai Ye v. U.S. Dept. of 
Justice, 489 F.3d 517, 519 (2d eir. 2007) (it is reasonable to infer that a party who submits strikingly 
similar documents is the common source of those similarities). Such letters cannot suffice, by 
themselves, to establish the petitioner's influence on the field as a whole, and the petitioner has 
provided no corroborating evidence to support the specific claims in the letters. These unsupported 
claims do not meet the petitioner's burden of proof. See Matter of Soffici, 22 I&N Dec. 165. 
Counsel claims that "the petroleum industry is notorious for refusing to file labor certifications, 
preferring to keep foreign employees in indentured status." Counsel provides no evidence to support 
this claim, and counsel's unsupported claims are not evidence. See Matter of Obaigbena, 19 I&N 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
Dec. 534; Matter of Ramirez-Sanchez, 17 I&N Dec. 506. Also, the standard for waiving the labor 
certification requirement is the national interest, rather than circumventing an employer's alleged 
refusal to seek labor certification. 
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 
at 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 a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The AAO 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.