dismissed EB-2 NIW Case: Mechanical Engineering

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
IN RE: 
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. 5 1 153(b)(2) 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The petitioner filed a motion to reconsider, which the director dismissed. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
This petition, filed on July 25, 2007, seeks to classify the petitioner pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2), as a member of the professions 
holding an advanced degree. At the time he filed the petition, the petitioner was working as an 
engineering research associate at the Energy Systems Laboratory (ESL), a division of the Texas 
Engineering Experiment Station (TEES) at Texas A&M University. The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national 
interest of the United States. The director found that the petitioner qualifies for classification as a 
member of the professions holding an advanced degree, but that the petitioner has not established 
that an exemption from the requirement of a job offer would be in the national interest of the United 
States. 
On appeal, counsel argues that the evidence submitted by the petitioner "has established that his past 
achievements are greater than those of his peers" and that "he will serve the national interest to a 
substantially greater degree than would an available U.S. worker having the same minimum 
qualifications." For the reasons discussed below, we uphold the director's decision. 
Section 203(b) of the Act states in pertinent part that: 
(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 petitioner received his Ph.D. in Engineering from Texas A&M University in 2004. The director 
found that the petitioner qualifies as a member of the professions holding an advanced degree. The sole 
issue in contention is whether the petitioner has established that a waiver of the job offer requirement, 
and thus a labor certification, is in the national interest. 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
The Service 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. 
Matter of New York State Dep 't. of Transp., 22 I&N Dec. 2 15, 2 17- 18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, it must be shown that the alien seeks employment in an area of 
substantial intrinsic merit. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. Finally, the petitioner seeking the waiver must establish that the alien will serve the 
national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. Id. at 21 7- 18. 
It must be noted that, while the national interest waiver hinges onprospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. 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. Id. 
We concur with the director that the petitioner works in an area of intrinsic merit, mechanical 
engineering,' and that the proposed benefits of his work, improvements and research relating to 
building energy systems and Continuous Commissioning@ technologies, would be national in scope. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available U.S. worker with the same minimum qualifications. 
' "Mechanical engineers research, design, develop, manufacture, and test tools, engines, machines, and other mechanical 
devices. Mechanical engineering is one of the broadest engineering disciplines. Engineers in this discipline work on 
power-producing machines such as electric generators, internal combustion engines, and steam and gas turbines. They 
also work on power-using machines such as refrigeration and air-conditioning equipment, machine tools, material- 
handling systems, elevators and escalators, industrial production equipment, and robots used in manufacturing." See 
http://www.bls.gov/oco/ocos027.htm, accessed on March 3,20 10, copy incorporated into the record of proceeding. 
Page 4 
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position 
sought. In other words, we generally do not accept the argument that a given project is so important 
that any alien qualified to work on this project must also qualify for a national interest waiver. Id. at 
218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique 
background." Special or unusual knowledge or training does not inherently meet the national 
interest threshold. The issue of whether similarly-trained workers are available in the United States 
is an issue under the jurisdiction of the Department of Labor. Id. at 221. 
At issue is whether this petitioner's contributions in the field are of such unusual significance that 
the petitioner merits the special benefit of a national interest waiver, over and above the visa 
classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. 
A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original 
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific 
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7. 
As stated above, the petitioner received his Ph.D. fiom Texas A&M University and continued there as 
an engineering research associate at the ESL upon graduating. The petitioner submitted evidence that 
he is an Associate Member of the American Society of Heating, Refrigerating, and Air Conditioning 
Engineers and a member of the American Society of Mechanical Engineers, but there is no 
documentation showing their membership requirements. The petitioner also submitted his Professional 
Engineer License for the State of Texas. The petitioner states: "All 50 States and the District of 
Columbia require licensure for engineers who directly offer their services to the public." Thus, the 
preceding documentation does not appear to set the petitioner apart from any other engineering 
professionals. Even if the petitioner had established that the preceding license and memberships are 
indicative of a degree of expertise significantly above that ordinarily encountered in the field of 
engineering, such evidence relates to the regulatory criteria for establishing eligibility as an alien of 
exceptional ability, 8 C.F.R. $$204.5(k)(3)(ii)(C) and (E), a classification that normally requires an 
approved alien employment certification. We cannot conclude that meeting one, two, or even the 
requisite three criteria, warrants a waiver of the alien employment certification process in the national 
interest. Id. at 2 1 8, 222. 
Along with his published conference articles and project reports, the petitioner submitted several 
letters of support. In evaluating the reference letters, we note that letters concluding, with little 
explanation, that the petitioner meets the requirements set forth at NYSDOT, 22 I&N Dec. at 217-1 8, 
are insufficient. Similarly, letters that simply praise the petitioner's engineering skills or the novelty 
and potential significance of his research are less persuasive than letters that provide specific 
examples of how the petitioner has already influenced the field. In addition, letters from 
independent references who were previously aware of the petitioner through his reputation and who 
have applied his work are the most persuasive. 
ESL, Texas A&M University, states: 
Page 5 
The ESL is one of the leading research and educational laboratories in the field of building 
energy systems and Continuous Commissioning@ technologies in the United States. The 
major goals of the ESL are to develop and transfer energy efficiency technology for the 
public benefit to enable substantial energy savings while improving comfort and 
productivity. The ESL educates the public, conducts research and performs services to 
promote aggressive energy conservation measures in central utility plants and in commercial 
and institutional buildings. 
Since he joined our research team, he has repeatedly demonstrated his capabilities in various 
projects assigned him. He has broad knowledge in this highly specialized field. His research 
work not only has academic value, but is also very practical. 
During the course of his graduate study, [the petitioner] has developed and demonstrated his 
acquired expertise in applied technology research in energy efficiency. 
[The petitioner's] dissertation involved the simulation and optimization of thermal and 
electric utility plants and hydraulic research of thermal distribution networks for large 
campuses. In his dissertation, he addressed two very important issues: the first is the 
development of the methodology and procedures for constructing and calibrating hydraulic 
simulation models for large thermal distribution systems. . . . He has put tremendous effort 
in his research and come up with ways to improve the methodology and procedures to build 
the simulation models, which are keys to obtain accurate and reliable models. He also 
applied his research to many real-world engineering projects and achieved excellent results. 
The ESL worked with the University of Texas at San Antonio on a campus expansion project 
and saved $1.8 million in construction cost of their chilled water loop expansion project in 
2003. Texas A&M University has one of the largest district heating and cooling systems in 
this country. The hydraulic simulation models, which [the petitioner] had helped construct, 
were successfully utilized for its 30-year master planning program and practically all of its 
various loop and utilities plants expansion projects. Because of his efforts and contributions, 
we are able to use techniques developed by him to solve various engineering problems 
regarding thermal distribution systems throughout the United States. . . . He has published 
several exceptional papers to share his research and experience with peers. 
While the petitioner developed simulation models for ESL projects at Texas A&M University and 
at the University of Texas at San Antonio, there is no evidence showing that his methodologies 
have been applied by others or attracted significant attention throughout his field as being 
particularly noteworthy. 
The second issue addressed in his dissertation is the development of thermal utilities plant 
simulation software specialized for operation optimization. . . . With his unique combination 
of interdisciplinary knowledge and skills, [the petitioner] proposed new inverse modeling 
techniques to construct equipment models, which greatly improved the accuracy of the 
simulation results. [The petitioner] also proposed innovative cost allocation methods to track 
the cost of plant operation, which is critical to conduct therrno-economic analysis. This is a 
landmark contribution in improving the utilities plant energy simulation. . . . [The 
petitioner's] research will substantially influence the work of others in the field of utilities 
plant simulation. As matter of fact, an outcome of [the petitioner's] outstanding research was 
used to develop a rate model for Texas A&M University, and the model results are used to 
guide the daily operation of its cogeneration utilities plant. In addition, the model is used to 
assess the cost and project the energy budget for the university's central plant. 
notes that the petitioner's rate model is utilized by his present employer, but his letter 
does not specify how the petitioner's research regarding new inversed modeling techniques has 
already influenced the workof others in the field of utilities plant simulation. While the petitioner's 
research is no doubt of value, it can be argued that any engineering research must be shown to be 
original and present some benefit if it is to receive funding and attention from the scientific 
community. Any Ph.D. thesis or postdoctoral research, in order to be accepted for graduation, 
publication or funding, must offer new and useful information to the pool of knowledge. It does not 
follow that every engineering researcher who develops novel methodologies inherently serves the 
national interest to an extent that justifies a waiver of the job offer requirement. 
senior administrator at the U.S. Department of Energy (DOE) before retiring from government 
service in 2003. further states: 
During my years at DOE, one of the nation's most significant new programs was the 
Continuous Commissioning (CC) activity, initiated as part of the Texas LoanSTAR program 
at the Energy Systems Laboratory (ESL) at Texas A&M University (TAMU). 
[The petitioner] has successfully conducted many CC projects on the thermal distribution 
systems of Texas A&M University at College Station, University of Texas at San Antonio 
(UTSA), and other sites. These projects include: chilled water and heating hot water loops 
expansion, satellite plant heating hot water system innovative operation, domestic hot water 
system balancing, master planning, and condenser water system troubleshooting. 
[The petitioner] also made significant contribution in the hydraulic simulation and its 
application on large thermal distribution systems. . . . By using the simulation models, [the 
petitioner] resolved a number of long-standing engineering issues in this area. He has 
published many high-quality papers that have been well-received by his research peers. 
notes that the petitioner "has published many high-quality papers that have been well- 
received by his research peers," but he does not explain how the petitioner's work is being applied 
by others in the field. Similarly, a letter from of the ESL, 
states: "[The petitioner's] work has been published internationally in the proceedings of the World 
Energy Engineering Congress, International Building Performance Simulation Association 
Conference, and the International Conference on Enhanced Building Operation." The letters from 
and do not provide examples of how the petitioner's published and 
presented work has significantly impacted the field as a whole. For example, numerous independent 
citations for an engineering research paper authored by the petitioner would provide solid evidence 
that others in his field have been influenced by his work and are familiar with it. On the other hand, 
few or no citations of an article authored by the petitioner may indicate that his work has gone 
largely unnoticed by his field. In this case, the petitioner has not submitted evidence of any 
independent cites to his published or presented engineering research. 
I have worked with [the petitioner] and find him to have an extraordinary intellect in the field 
of energy conservation. He has an unusual expertise in Continuous Commissioning@ 
technology, not commonly found in the engineering profession. . . . As a project leader, [the 
petitioner] has provided Continuous Commissioning in numerous institutional and industrial 
buildings as well as U.S. Army medical care facilities. 
Training in advanced technology or unusual knowledge, while perhaps attractive to the prospective U.S. 
employer, does not inherently meet the national interest threshold. Id. at 221. 
for Utilities, Physical Plant Department, Texas A&M University, states: 
The Energy Systems Laboratory (ESL) at TAMU developed the process of Continuous 
Commissioning@ of buildings and central utility plants. The ESL provides leadership for 
other building experts nationally and internationally by demonstrating the ongoing value of 
Continuous Commissioning@. . . . [The petitioner] is one of the few people in the United 
States who has expertise in this new technology domain . . . . 
We asked the ESL to hire [the petitioner] because we need someone who not only has a 
thorough understanding of the operation of the entire utilities system, but who also can 
perform highly complicated engineering and economic analyses. . . . Through application of 
his advanced analytical and engineering skills, he has made an essential contribution to the 
results achieved at TAMU. 
As discussed previously, it cannot suffice to state that the petitioner possesses useful skills, or a 
"unique background." Special or unusual knowledge or training does not inherently meet the 
national interest threshold. The issue of whether similarly-trained workers are available in the 
United States is an issue under the jurisdiction of the Department of Labor. NYSDOT, 22 I&N Dec. 
at 221. 
I . . . began working for-~n 1999 as their primary Project Engineer 
for lighting systems and utility conservation. I also managed and implemented several large- 
scale Continuous Commissioning@ projects, several of which gave me ample opportunity to 
see [the petitioner] in action and get to know him personally. While my projects were often 
off-campus, [the petitioner's] were primarily on-campus to the Texas A&M system at 
various facilities . . . . 
[The petitioner] has authored almost a dozen professional papers, presented relevant work at 
several scientific conferences, and has garnered substantial recognition in the field as 
evidence of the numerous awards he has won based on the quality of his energy conservation 
work. 
Whilenotes that the petitioner has published and presented his research, he does not 
provide examples of how the petitioner's work is being used by independent researchers in academia 
br industry. Moreover, does not specifically identify any of the "numerous awards" 
won by the petitioner for "the quality of his energy conservation work" and the record does not 
include evidence of any such awards. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). 
states that he is a manager of energy conservation programs for his employer, IBM. 
I am personally familiar with the Continuous Commissioning@ technology developed by the 
ESL and trademarked due to its unique ability to significantly reduce energy use and 
environmental air pollution. This technology has achieved 15 to 25% energy savings on 
existing buildings at very low cost and typical paybacks of % to two-year payback at IBM 
facilities in Austin, Texas since 2004. The ESL is now deploying this critical technology 
nationwide for my employer, IBM. According to, the ESL has applied this 
technology to more than 300 buildings nationwide, with cumulative savings of over $75 
million. Additionally, the ESL at Texas A&M is one of only a hand-full of universities that 
trains engineers like [the petitioner] in this very important new engineering discipline. 
However, due to the scarcity of trained experts in this field, the spread of this technology is 
very limited in the United States. Therefore, I strongly recommend your agency approve the 
national interest waiver petition for [the petitioner] based on the fact he is doing research and 
working in a critical field of great benefit to the U.S. and industry. 
While states that he is familiar with the Continuous Commissioning@ technology 
developed by the ESL, his letter does not specify how the petitioner's work has influenced the field. 
Rather, notes the "scarcity of trained experts" in the petitioner's field. We note that the 
employment certification process was designed to address the issue of worker shortages. A shortage of 
qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds 
for a national interest waiver. NYSDOT, 22 I&N Dec. at 221. Similarly, arguments about the overall 
importance of the petitioner's field of research may establish the intrinsic merit of his work, but such 
general arguments cannot suffice to show that an individual worker in his field qualifies for a waiver of 
the job offer requirement. Id. at 2 18. 
On October 17, 2008, the director requested evidence demonstrating that the petitioner's prior 
achievements have had a significant impact in his field of endeavor. In response, the petitioner 
submitted additional letters of support. 
University of Nebraska - Lincoln, states that he is "the primary founder of Continuous 
Commissioning@ technologies, a landmark process that is supported by continuously developing 
and transferring building energy technologies that has been proven to save building energy 
consumption by 15 to 35 percent." further states: 
I have initiated/developed Continuous Commissioning@ at Texas A&M University and 
continuously involved with the research activities at the Energy Systems Laboratory (ESL) at 
Texas A&M University for the last 20 years. 
Over the last 16 years alone, the ESL has installed Continuous Commissioning technology in 
more than 400 buildings nation-wide, resulting in cumulative savings of over 100 million US 
dollars. In collaboration with partner organizations and the state and federal government, 
ESL is translating proven technologies into financial growth. 
[The petitioner] is responsible for expanding the focus of Continuous Commissioning from 
building energy systems to energy plant and thermal distribution systems, (thus optimizing 
the operation and control of cogeneration plants, thermal utilities plants, and thermal 
distribution networks.) 
The following presents a list of world renowned facilities where [the petitioner] has made an 
impact: 
(1) Texas A&M University (TAMU) at College Station, Texas, 
(2) DallasIFort Worth International Airport (DEW), 
(3) Austin-Bergstrom International Airport (ABIA), 
(4) Tripler Army Medical Center (TAMC) at Honolulu, Hawaii, 
(5) IBM Executive Center at Austin, Texas (IECA), 
(6) A major Data Center at Austin, Texas, and 
(7) University of Texas at San Antonio (UTSA) Downtown Campus. 
Aside from the Tripler Army Medical Center in Hawaii, we note that all of the remaining facilities 
for which the petitioner provided engineering services were located in Texas. Such local projects do 
not establish the national impact of the petitioner's engineering work. Moreover, we cannot ignore 
that the Continuous Commissioning@ technology was originally developed by and that it 
had been in existence long before the petitioner came to work for the ESL. In contrast with 
work, there is no intellectual property documentation showing that any technologies originally 
developed by the petitioner have been licensed or patented and then applied by others in his field. 
The petitioner's exposure to another's advanced technology (such as Continuous Commissioning@) 
constitutes, essentially, occupational training which can be articulated on an application for an alien 
employment ~ertification.~ As previously discussed, special or unusual knowledge or training, while 
perhaps attractive to the prospective U.S. employer, does not inherently meet the national interest 
threshold. Id. at 22 1. 
A&M University, states: 
[The petitioner] is an outstanding researcher in optimizing energy consumption in buildings 
or industrial plants. The skills and knowledge of this field are extraordinary unique. The 
United States needs his state-of-the-art skills in Continuous Commissioning@ technology. To 
lose a person with his skills would represent a serious setback to the development and 
transfer of Continuous Commissioning@ technology. His permanent residency will benefit 
the U.S. by carrying and demonstrdting Continuous Commissioning@ to a broad audience. 
As previously discussed, it cannot suffice to state that the alien possesses useful skills, or a "unique 
background." Regardless of the alien's particular experience or skills, even assuming they are unique, 
the benefit the alien's slulls or background will provide to the United States must also considerably 
outweigh the inherent national interest in protecting U.S. workers through the labor certification 
process. NYSDOT, 22 I&N Dec. at 221. 
The record does not contain any evidence that the petitioner has developed technology for which the ESL holds a patent, 
trademark, or license. An alien's 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. While innovation of a new method is of 
greater importance than mere training in that method, it must be stressed that such innovation is not always sufficient to meet 
the national interest threshold. For example, an alien cannot secure a national interest waiver simply by demonstrating that he 
or she holds a patent. Whether the specific innovation serves the national interest must be decided on a case-by-case basis. 
NYSDOT, 22 I&N Dec. at 221, n. 7. 
Page 1 1 
Texas A&M University, states: 
[The petitioner] has created many new CC8 techniques, which are instrumental to the 
success of many plant and loop CC8 projects such as: CC8 of the TAMU Domestic Hot 
Water (DHW) System, Optimization of TAMU Cooling Towers Operation and Control, 
CC8 of TAMU West Campus Heating Hot Water System, and CC8 of the TAMU 
Cogeneration Plant. I would like to especially applaud [the petitioner's] outstanding work on 
the TAMU DHW CC8 project. . . . [The petitioner] creatively designed a conceptual 
simulation model for the system. Using this model, he proved the correct solution to the 
problem was completely opposite to previous solutions attempted which were not only 
wasting energy but also making the problem even worse. . . . I feel the success of this project 
has a much more profound impact on the CC8 process than simply solving this problem 
because it was the first example where the CC8 concepts had been applied in the area of 
large DHW systems. The results of this research were presented and published at the World 
Energy Engineering Congress (WEEC) in Washington DC, which is the most important 
event of national scope for end users and energy professionals in the energy field. 
With his outstanding thermal hydraulic simulation expertise, [the petitioner] has successfully 
supported the TAMU decision makers on many campus expansion projects by providing 
professional engineering services. These projects include TAMU 30-year Master Planning 
project, Agronomy Road Expansion project, Ross Street Underground Piping Replacement 
project, South Satellite Plant Expansion project, Indoor Athletic Facility project, 
Interdisciplinary Life Science Building project, the Mitchell Physics Building project, and 
many more. 
For the major data center in Austin, Texas, he developed optimized staging control and 
temperature reset schedule for six chillers and their associated cooling towers. [The 
petitioner] also developed new temperature and humidity control strategies, not only 
improving the reliability of this facility but also saving energy. His excellent 
recommendations led to $56,000 savings per year and with less than one year payback. 
As one of the leading experts in the field of CC8, [the petitioner] has published a number of 
papers that are highly regarded. In July 2006, [the petitioner] presented and published a 
paper at the Symposium on Improving Building Systems in Hot and Humid Climates, 
introducing pioneering research results from applying CC8 process to a modern central 
utility plant. As mentioned above, in September 2006, [the petitioner] published a paper at 
the World Energy Engineering Congress (WEEC) in Washington DC. His paper was the first 
time to demonstrate a very successful case study of implementing the CC8 process in large 
Page 12 
Domestic Hot Water systems. He is also the first author of several papers that were presented 
at the International Conference for Enhanced Building Operations (ICEBO) and the 
Symposium on Improving Building Systems in Hot and Humid Climates. In September 2007, 
[the petitionerl's paper was presented at the Proceedings of the 10th International Building 
Performance Simulation Association Conference (IBPSA) in Beijing, China, an international 
conference on advanced building energy simulation. . . . Recently, he has been approached - - - - 
by which is a German-based publisher for the manuscript of his 
dissertation - "Simulation of thermal plant optimization and hydraulic aspects of thermal 
distribution loops for large campuses." The publisher is willing to make [the petitioner's] 
academic research available to a wider international audience. 
The petitioner's motion included a July 2008 e-mail message from to - 
requesting that the petitioner submit his Ph.D. dissertation manuscript to VDM Verlag for review. 
The request from post-dates the petition's July 25, 2007 filing date. A petitioner, 
however, must establish eligibility at the time of filing. 8 C.F.R. fjfj 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Accordingly, the AAO will not consider this 
evidence in this proceeding. Nevertheless, such a request for the petitioner to submit his manuscript 
for possible publication is not an indication that his unpublished work has already impacted the field 
as a whole. 
fi of Architectural Engineering and Director of the Indoor 
Environment Center at Pennsylvania State University, states that he came to know of the petitioner 
by reviewing materials provided to him "by the Texas A&M University (TAMU) Energy Systems 
Laboratory describing [the petitioner's] professional background and accomplishments." 
TAMU is a leader in this field and has developed a particular process known by the service 
mark Continuous Commissioning@ (CC) that is widely used by the private sector and the 
U.S. government. 
[The petitioner] has developed many innovative techniques in the process of successfully 
carrying out many challenging plant and distribution system CC projects, including the 
TAMU domestic hot water system, chilled water plant cooling tower control optimization, 
West Campus heating hot water system, and cogeneration plant. His pioneering research has 
extended the application CC to new frontiers. A good example is [the petitioner's] 
outstanding work on the TAMU cogeneration project. 
TAMU has a 36.5 MW cogeneration plant equipped with gas turbine generator, steam 
turbine generators, industrial boilers, heat recovery steam boilers (HRSB). HRSBs can be 
operated either in heat recovery mode or in supplementary-firing mode. Usually, the 
cogeneration plant is designed to have maximum efficiency with the HRSB in heat-recovery 
mode. . . . To support the CC exercise, [the petitioner] developed an advanced thermal 
economic simulation model for the TAMU cogeneration system. Based on the simulation 
results and his unique education and experience, [the petitioner] determined that because the 
thermal load profiles and cost of electricity and natural gas had changed so much from the 
time the plant was designed that, contrary to common practice, operating the HRSB in 
supplementary-firing mode would give the highest efficiency. The results of this research and 
detailed methods on how to determine optimal operation control for the HRSB were 
published in his dissertation for public access. 
This was the first real example that the CC concepts had been applied in the area of 
cogeneration systems. It demonstrated that the conventional wisdom of operators is not 
always correct and that the application of scientific approaches to the evaluation of control 
strategies can yield tremendous benefits. The implementation of this operational change has 
saved the TAMU plant millions of dollars in energy costs and could save billions if the 
application of the methods developed by [the petitioner] were to be applied to the 
optimization of the tens of thousands of cogeneration plants currently in operation in the U.S. 
The record, however, does not establish that the original simulation model and methodologies 
specifically developed by the petitioner have been successfully applied by other engineers at a 
significant number of other cogeneration plants throughout the U.S. as of the petition's filing date. 
As discussed previously, a petitioner must establish eligibility at the time of filing. 8 C.F.R. 
$9 103.2(b)(l), (12); Matter of Katighak, 14 I&N Dec. at 49. Moreover, does not 
claim to be using the petitioner's methods and provides no examples how the petitioner's work has 
influenced the field beyond the ESL projects in which he was directly involved. 
I have direct knowledge of [the petitioner's] capabilities. He is the leader of a team that is 
working on energy efficiency and operational improvements for the Energy Plaza, the DFW 
Airport's central utility plant. He and his team have developed highly sophisticated models of 
our utility plant and hydraulic systems. They have optimized the operation of our chiller 
plant and its coupled chilled water, thermal storage system. Through their expertise, we have 
reduced our operational costs nearly $200,000 thus far this year, and I expect the savings to 
increase to over $500,000 next year. He and his team are improving our cooling tower 
operation, optimizing our chiller plant, and improving our overall thermal management 
practices, both for high temperature water and our glycol, low temperature water. 
While the petitioner has applied his engineering skills to various projects assigned to him by his 
superiors at the ESL, there is no evidence demonstrating that his work has significantly impacted his 
field to an extent that justifies a waiver of the job offer requirement. 
The director denied the petition stating that the petitioner failed to establish that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United States. 
Among other deficiencies, the director's decision noted a lack of evidence showing that the 
petitioner's work has been cited by "colleagues and others in the field." 
Page 14 
On motion to the director, the petitioner submitted a second letter from addressing this 
finding stating: 
CC8 technologies developed by [the petitioner] are the properties of TEES and protected by 
intellectual property law. Without proper authorization, no one should use these technologies. 
That is why [the petitioner's] work is not cited by the general public often. In this case, the 
pure "internet" history of someone's work being cited by others should not be considered a 
reliable indicator of one's significant past impact or great contribution to the national interest. 
Contrary to statement, the director's decision did not refer to a lack of citation "by the 
general public," but rather by the petitioner's "colleagues and others in the field." For researchers, - 
citations offer an objective way of measuring the extent to which one researcher's work has 
influenced the work of others in the field. Moreover, assertion that the etitioner's 
research is not accessible due to intellectual property protections is not ersuasive. 
comments contradict earlier statements by - P 
and. For example, - states that the petitioner "has published a number 
of papers that are highly regarded." states that the petitioner "has published several 
exceptional papers to share his research and experience with peers." similarly, notes 
that the petitioner "has published many high-quality papers that have been well-received by his 
research peers." states: "[The petitioner's] work has been published internationally in 
the proceedings of the World Energy Engineering Congress, International Building Performance 
Simulation Association Conference, and the International Conference on Enhanced Building 
Operation." Finally, states: 
[The petitioner's] pioneering research in the area of Continuous Commissioning@ has been 
widely published in national and international conferences, including the World Energy 
Engineering Congress, the Symposium on Improving Building Systems in Hot and Humid 
Climates, the International Building Performance Simulation Association, and the 
International Conference on Enhanced Building Operation. 
On appeal, counsel points to non-precedent decisions by this office that, according to counsel, 
demonstrate that heavy citation is not necessary. While 8 C.F.R. fj 103.3(c) provides that AAO 
precedent decisions are binding on all U.S. Citizenship and Immigration Services (USCIS) 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Regardless, we agree that citations are not the only means by which to show the petitioner's impact 
on his field. Independent witness letters can also play a significant role in this respect. Here, 
however, the petitioner has submitted only a handful of such letters, which collectively fail to 
establish the depth or extent of his influence on the field as whole. 
Counsel states that two "independent letters" of recommendation were submitted by - 
and I. We note comment in the second sentence of his letter that he 
received information about the petitioner from the petitioner's supervisor at the ESL, m  oreo over- notes that the E;SL is deploying Continuous Commissioning@ technology for 
his employer, IBM. Accordingly, the "independent" nature of letter is not immediately 
Page 15 
apparent. Nevertheless, the content of the letters of support has already been addressed in our 
discussion of the submitted evidence. USCIS 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, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795. USCIS may even give 
less weight to an opinion that is not corroborated, in accord with other information or is in any way 
questionable. Id at 795; see also Matter of SofJici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
In this matter, we are not persuaded that the record contains sufficient evidence of any type that 
demonstrates the petitioner's influence in the field as a whole. While petitioner has contributed to 
multiple engineering projects undertaken by the ESL, he has not established that his past record of 
achievement is at a level that would justify a waiver of the job offer requirement which, by law, 
normally attaches to the visa classification sought by the petitioner. We note that 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. at 217 n.3. More 
specifically, the petitioner "must clearly present a significant benefit to the field of endeavor." Id. at 
21 8. See also id. at 2 19 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 alien of 
exceptional ability 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 occupation, 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 alien employment certification will be in the national interest of the United 
States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied 
by an alien employment certification certified by the Department of Labor, appropriate supporting 
evidence and fee. 
ORDER: The appeal is dismissed.