dismissed O-1A Case: Engineering

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PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave. NW, Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE: SRC 0520051253 Office: TEXAS SERVICE CENTER Date:
JUL 2 3 2(117
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(O)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(O)(i)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
)1 " .... '0') ""ii? /;
.0 \,/t£(Ufd_ lj ·(iJj /I· U(_
( "Robert P. Wiemann, Chief
tv°Administrative Appeals Office
www.uscis.gov
SRC 05 200 51253
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center,
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a company engaged in pipeline integrity management. The beneficiary is an engineer.
The petitioner seeks 0-1 classification of the beneficiary, under section 101(a)(15)(0)(i) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(0)(i), as an alien with extraordinary
ability in the sciences. The petitioner seeks to employ the beneficiary temporarily in the United States
for a period of three years as a lead Guided Ultrasonics Limited (GUL) technician.
The director denied the petition, finding that the petitioner failed to meet the evidentiary criteria to
demonstrate that the beneficiary had achieved sustained national or international acclaim.
On appeal, counsel submits a brief and additional evidence.
Section 101(a)(15)(0)(i) of the Act provides classification to an alien who
has extraordinary ability in the sciences, arts, education, business or athletics which has been
demonstrated by sustained national or international acclaim . . . and whose achievements have
been recognized in the field through extensive documentation, and seeks to enter the United
States to continue work in the area of extraordinary ability[.]
Section 101(a)(15)(0)(i) of the Act, 8 U.S.C. § 1101(a)(15)(0)(i).
The corresponding regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines, in pertinent part:
Extraordinary ability in the field of science, education, business, or athletics means a
level of expertise indicating that the person is one of the small percentage who have
arisen to the very top of the field of endeavor.
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) prescribes:
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science,
education, business, or athletics. An alien of extraordinary ability in the fields of
science, education, business, or athletics must demonstrate sustained national or
international acclaim and recognition for achievements in the field of expertise by
providing evidence of:
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or
(B) At least three of the following forms of documentation:
(1) Documentation of the alien's receipt of nationally or internationally
recognized prizes or awards for excellence in the field of endeavor;
SRC 0520051253
Page 3
(2) Documentation of the alien's membership in associations in the field for
which classification is sought, which require outstanding achievements of their
members, as judged by recognized national or international experts in their
disciplines or fields;
(3) Published material in professional or major trade publications or major media
about the alien, relating to the alien's work in the field for which classification is
sought, which shall include the title, date, and author of such published material,
and any necessary translation;
(4) Evidence of the alien's participation on a panel, or individually, as a judge of
the work of others in the same or in an allied field of specialization to that for
which classification is sought;
(5) Evidence of the alien's original scientific, scholarly, or business-related
contributions ofmajor significance in the field;
(6) Evidence of the alien's authorship of scholarly articles in the field, In
professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or essential capacity
for organizations and establishments that have a distinguished reputation;
(8) Evidence that the alien has either commanded a high salary or will command
a high salary or other remuneration for services, evidenced by contracts or other
reliable evidence.
(C) If the criteria in paragraph (0)(3)(iii) of this section do not readily apply to the
beneficiary's occupation, the petitioner may submit comparable evidence in order to
establish the beneficiary's eligibility.
The record contains no evidence that the beneficiary has received a major, internationally recognized
award equivalent to that listed at 8 C.F.R. § 214.2(0)(3)(iii)(A). Accordingly, we address the
beneficiary's eligibility under the relevant criteria at 8 C.F.R. § 214.2(0)(3)(iii)(B). Counsel does not
claim that the beneficiary meets any criteria not discussed below.
(2) Documentation of the alien's membership in associations in the field for which classification is
sought, which require outstanding achievements oftheir members, as judged by recognized national
or international experts in their disciplines or fields.
Counsel did not initially claim that the beneficiary met this criterion. In her response to the director's
Request for Evidence (RFE), counsel claimed the beneficiary satisfied this criterion through his
certification as a Level II GUL operator. The record does not support counsel's claim. The petitioner
submitted a copy of a certificate stating that the petitioner is a Level 2 operator ofGUL's Wavemaker'"
SRC 0520051253
Page 4
SE16 Pipe Screening Equipment. The bottom portion of the copied certificate is illegible and the
portion of the certificate stating that the petitioner is affiliated with the petitioning company has been
visibly altered by placing the company's logo onto a copy of the certificate. The partial illegibility and
alteration of this document greatly detracts from its veracity and probative value. Yet even if it
confirmed the petitioner's technical qualification, the certificate would evidence a professional
credential, not membership in an association as this regulatory criterion requires.
The petitioner submitted GUL's trainin~ brochure for the Wavemaker" SE16 Pipe
Screening Equipment and a letter from _ Chairman of GUL. These documents show
that GUL is a company that supplies equipment, training and consultation for the testing of pipelines
using guided ultrasonic wave techniques. The Wavemaker Pipe Screening Sy~f GUL's
products for which it provides training and certification. Both the brochure and _state that
GUL certifies operators at three levels. As _ explains, "Level I is the initial practitioner
grade, Level II is the top practitioner grade and Level III is the highest qualification[.]"
reports that in the last five years, GUL has certified only three individuals at Level II, including the
beneficiary, and that the beneficiary is the first person outside of GUL employees to have been invited
to take the Level III training and examination. While the beneficiary's alleged Level II certification
may be a significant achievement, the evidence indicates that the certification is a professional
credential, not membership in an association, which requires outstanding achievements as judged by
recognized national or international experts in the beneficiary's field. GUL is a company, which
provides training and certification in the operation of one of its products. The petitioner has not
established that GUL is an association or that Level II operators of GUL's Wavemaker Pipe Screening
System have otherwise formed an association in the beneficiary's field. Consequently, the beneficiary
does not meet this criterion.
(5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major
significance in the field.
As evidence of his original scientific contributions, the petitioner submitted the following
documents:
1. An article entitled, "Application of Long Range Guided Wave Ultrasonic Testing as an
Integrity Management Tool." The beneficiary is the third-listed author of this article which
was presented at the 44th Annual Underground Corrosion Short Course at Purdue University
in February 2005;
2. The program for this conference, which shows that the beneficiary was a co-presenterof the
article at one of 42 sessions held at the conference;
3. Preliminary program for the American Society for Nondestructive Testing, Inc. (ASNT) Fall
Conference scheduled for October 2005, which shows that the petitioner is one of four
speakers scheduled for oneof 36 planned sessions;
4. Abstract of an article written by the beneficiary, which counsel stated would be submitted to
the ASNT Fall Conference; and
5. Support letters from five individuals working in the beneficiary's field.
SRC 0520051253
Page 5
The record contains no evidence that any articles authored by the beneficiary have been publishedin
professional journals in his field or that his work has been cited by or has otherwise significantly
influenced other individuals working in his field. Rather, the evidence shows that the beneficiary
was the co-presenter of one article, of which he was the third author, at one of 42 sessions held in
one conference in his field. The program for the 44th Annual Underground Corrosion Short Course
does not indicate that the beneficiary was a keynote speaker at the conference or that his work
otherwise received significant recognition by conference attendees or other individuals in his field.
The ASNT Fall Conference was scheduled to take place after this petition was filed. Accordingly,
the beneficiary's scheduled participation and intended article submission cannot be considered. The
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible
under a new set of facts. Matter of Michelin Tire Corp. , 17 I&N Dec. 248, 249 (Reg. Comm.
1978). Even if the ASNT Fall Conference had occurred before the petition was filed, the
submitted documents do not indicate that the beneficiary's contribution was of major
significance to his field.
The petitioner submitted support letters from I Chairman of GUL; also of
of the Department of Mechanical Engineering at Imperial Colle~
, Pro essor of Mechanical Engineering at the Imperial College London; and_
Staff Engineer at Shell Westhollow Research Center. 1 While such letters provide relevant
information about an alien's experience and accomplishments, they cannot by themselves establish the
alien's eligibility under this criterion because they do not demonstrate that the alien's work is of major
significance in his field beyond the limited number of individuals with whom he has worked directly.
Even when written by independent experts, letters solicited by an alien in support of an immigration
petition carry less weight than preexisting, independent evidence of major contributions that one would
expect of an alien who has achieved sustained national or international acclaim. Accordingly, we
review the letters as they relate to other evidenceof the petitioner's contributions.
I states that the beneficiary is one of only three individuals who have been certified by
GUL as Level II operators and that he is first person, outside of GUL employees, to have been
invited to take the Level III training. _ conducted the beneficiary's Level I training course
and confirms that the beneficiary, as of the date of letter, is one of only three
practitioners who have been certified as Level II operators by GUL and adds that the beneficiary
"has been at the forefront of work to develop procedures for inspecting concrete lined pipes and
risers on offshore platforms." taught part of the beneficiary's Level II training and
states that the beneficiary "is one of only two or three who are capable of taking the use of the
1 The petitioner also submitted a letter from _ Professor and Director of the
Center for Nondestructive Evaluation at low~owever, Professor _
simply states that there are no labor unions or organizations governing the beneficiary's occupation
in the United States. Professor Thompson does not evaluate the beneficiary's achievements or
contributions to his field.
SRC 05 200 51253
Page 6
technology forward in new and demanding applications." praises the beneficiary as
"the most experienced and technically competent operator of [GUL] technology that I know of
globally."
Professor" and II praise the beneficiary's skills and
exceptional technical qualifications, but the record does not indicate that the beneficiary's
accomplishments have been recognized as major, original contributions to his field. Rather, the
evidence shows that the beneficiary is a highly qualified technician who is the third author of one
unpublished article, which he co-presented at a single session of one conference in his field.
Accordingly, the beneficiary does not meet this criterion.
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or
other major media.
As discussed above under the fifth criterion, the record shows that the beneficiary is the third author of
one article that was presented at one conference in his field, the 44 th Annual Underground Corrosion
Short Course. We cannot consider the beneficiary's abstract of his article, purportedly submitted to the
ASNT Fall Conference in 2005, because the conference was scheduled to occur after the petition was
filed. Again, the petitioner must establish the beneficiary's eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N
Dec. at 249.
The record does not show that the beneficiary's single article presented at the 44 th Annual
Underground Corrosion Short Course at Purdue University has been published in a professional
journal or other major media. On appeal, counsel claims "there is no requirement that the original
works by the beneficiary be 'published'" (emphasis in original). Counsel's interpretation disregards
the plain language of the regulation. Counsel fails to explain how scholarly articles could appear in
"professional journals, or other major media" without being published.
In the alternative, counsel claims that the beneficiary's article was "indeed 'published' by Purdue
University." Yet the petitioner submitted no copy of the beneficiary's article as it appeared in any
conference publication issued by Purdue University. Without documentary evidence to support the
claim, the assertions of counsel will not satisfy the petitioner's burden of proof The unsupported
assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N
Dec. 503,506 (BIA 1980).
Even if the beneficiary's article had been published, the record is devoidof any evidence that the article
has been cited or has otherwise received significant recognition by other individuals working in the
beneficiary's field. Accordingly, even if published, the article of which the beneficiary is the third
author, would not be consistent with sustained national or international acclaim.
The beneficiary fails to satisfy this criterion.
SRC 05 200 51253
Page 7
(7) Evidence that the alien has been employed in a critical or essential capacity for organizations
and establishments that have a distinguished reputation.
Counsel claims the beneficiary meets this criterion because the petitioning company submitted a grant
proposal to the Office of Pipeline Safety (OPS), Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, in which the beneficiary ''would play an essential
role as the representative of IMPro Technologies in the actual and practical application of the
technology as well as demonstrating for further research and developmental purposes as proposed."
The record contains no evidence that OPS had accepted the petitioning company's proposal at the time
this petition was filed. Accordingly, the beneficiary's proposed role, however essential, cannot meet
this criterion. The regulation requires evidence that the alien "has been employed in a critical or
essential capacity" (emphasis added). 8 C.F.R. § 214.2(0)(3)(iii)(B)(7). Proposed employment in the
future will not suffice. Moreover, the petitioner must establish the beneficiary's eligibility at the time
of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire
Corp., 17 I&N Dec. at 249.
The record also does not establish that the petitioning company has a distinguished reputation. The
petitioner submitted no independent evidence that IMPro Technologies has received distinction in its
field. On appeal, the petitioner submits a document entitled, "A Brief Market Report on the
Potential Use of Long Range Ultrasonic Testing (LRUT) in the USA" prepared for IMPro
Technologies by an unidentified source and dated August 2005. We cannot consider this report for
two reasons. First, the document is dated after the petition was filed. Again, a visa petition may not
be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of
facts. Id. Second, the document was solicited by the petitioning company itself, the authors of the
report are unidentified and the manuscript consequently has little probative value. Moreover,
counsel fails to articulate how the potential use of LRUT in the United States evidences the
distinguished reputation of the petitioning company. Accordingly, the beneficiary does not meet this
criterion.
(8) Evidence that the alien has either commanded a high salary or will command a high salary or other
remuneration for services, evidenced by contracts or other reliable evidence.
The petitioner submitted a rate sheet for its services and a purchase order, which shows that the
company charges $7,500 per day for "D.O.T. Pipeline Inspections using 3rU Generation - Wavemaker
G-3." Contrary to counsel's assertion on appeal, however, these documents do not demonstrate that the
beneficiary himself would be compensated at $7,500 a day. Rather, the evidence simply shows that the
petitioning company charges its clients $7,500 a day for inspections that would be performed by the
petitioner.
The petitioner also submitted a copy of the beneficiary's 2004 federal income tax return, which states
his adjusted gross income as $106,245, and a printout stating that the Level 4 wage for mechanical
engineers in the beneficiary's geographical area is $86,466 a year. In its June 21, 2005 letter, the
SRC 05 200 51253
Page 8
petitioning company states that the beneficiary's base, annual salary will be $124,000. The fact that the
beneficiary's past and proposed salaries are higher than the Level 4 wage for mechanical engineers is
not probative. The record shows that the beneficiary is a GUL technician or nondestructive testing
(NDT) inspector. Throughout these proceedings, counsel has repeatedly stressed the significance of the
petitioner's specialized training and alleged certification in GUL's Wavemaker system. On appeal,
counsel reiterates that the beneficiary's field is "Long Range Guided Wave Ultrasonic Technology."
To broaden the petitioner's field to mechanical engineering in general, and only for the purpose of
assessing the beneficiary's eligibility under this criterion, is thus disingenuous and inconsistent.
Accordingly, the pertinent comparison is to the salary, or other remuneration, of other mechanical
engineers employed as GUL technicians or NDT inspectors. The petitioner submits no such evidence,
without which it is impossible to determine whether the beneficiary has or will command a high salary
or other remuneration in his specific field that is consistent with sustained national or international
acclaim. Accordingly, the beneficiary does not meet this criterion.
In order to establish the beneficiary's eligibility for nonimmigrant classification as an alien with
extraordinary ability in the sciences, the petitioner must demonstrate the alien's "sustained national or
international acclaim" and show that the alien's "achievements have been recognized in the field
through extensive documentation." Section 101(a)(15)(0)(i) of the Act, 8 U.S.C. § 1101(a)(15)(0)(i).
In this case, the petitioner has not demonstrated that the beneficiary has achieved sustained national or
international acclaim or that his achievements have been recognized in his field through extensive
documentation.
The regulation further requires the petitioner to establish that the beneficiary is "one of the small
percentage who have arisen to the very top" of his field. 8 ·C.F.R. § 214.2(0)(3)(ii). When discussing
the beneficiary's alleged Level II GUL certification,_ states:
Other level two operators, such as myself ... and _ Pavlakovic are recognised world
experts in this field and have Doctorates from Imperial College . . .. The expertise and
knowledge developed by [the beneficiary] over the last four years is equivalent to that of a BSc
[Bachelor of Science degree] (Engineering, specializing in the applicationof guided waves).
_ statement, combined with the limited evidence of the beneficiary's achievements,
~the beneficiary is a highly qualified technician, but does not demonstrate that the
beneficiary has arisen to the very top of his field. Accordingly, the beneficiary is ineligible for
nonimmigrant classification under section 101(a)(15)(0)(i) of the Act and the petition must be denied.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8
U.S.C. § 1361. Here, the petitioner has not met that burden.
ORDER: The appeal is dismissed.