dismissed EB-2 NIW Case: Mechanical Engineering

(b)(6)
DATE: JAN 1 5 2014 
INRE : Petitioner: 
Beneficiary : 
OFFlCE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrativ e 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. § 1 l5 3(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO 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 1-2908) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http: //www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R . § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
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 Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner is a 
mechanical engineer seeking self-employment in the oil and gas industry. 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 did not establish that he qualifies for 
classification as an alien of exceptional ability, or that an exemption from the requirement of a job offer 
would be in the national interest of the United States. 
In this decision, the term "prior counsel" shall refer to who represented the petitioner at 
the time the petitioner filed the petition. The term "counsel" shall refer to the present attorney of record. 
On appeal, the petitioner submits a brief from counsel and supporting exhibits. 
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 petitioner filed the Form I-140 petition on 
November 29, 2011. In an accompanying statement, 
prior counsel stated that the petitioner "is currently serving as 
Exceptional Ability 
The first issue concerns the petitioner's eligibility for the immigrant classification he seeks. The 
petitioner does not claim to be a member of the professions holding an advanced degree. An 
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Page 3 
evaluation of the petitioner's sole academic degree ( 
_ _ _ indicates that the degree is equivalent to a United States associate's degree in 
welding technology. Therefore, the petitioner possesses neither an advanced degree nor five years of 
post-baccalaureate experience equivalent to a xnaster's degree. See 8 C.F.R. § 204.5(k)(3)(i). 
As prior counsel indicated in the passage quoted above, the petitioner seeks classification as an alien 
of exceptional ability in the sciences. The U.S. Citizenship and Immigration Services (USCIS) 
regulation at 8 C.F.R. § 204.5(k)(3)(ii) requires the petitioner to submit evidence that qualifies under 
at least three of the following categories: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation for which 
he or she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in pwf:;;ssional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Only aliens who establish "a degree of expertise significantly above that ordinarily encountered" are 
eligible for classification as aliens of exceptional ability. 8 C.F.R. § 204.5(k)(2). 
On appeal, counsel cites to a Ninth Circuit Court of Appeals (Ninth Circuit) decision on a petition 
for an alien of extraordinary ability under ~/~;, · :';ion 203(b )(1 )(A) of the Act. See Kazarian v. USCJS, 
596 F.3d 1115 (9th Cir. 2010). In its decision, the Ninth Circuit concluded that USCIS should 
reserve any reservations about the record evidence that otherwise meets the plain language requirements 
of the regulatory criteria for a separate and subsequent "final merits determination. ld at 1121-22. 
Citing to the Kazarian decision, counsel acknowledges that "[a ]n individual might meet all six 
criteria and still not qualify as an individual of exceptional ability." The purpose of the final merits 
determination is to show whether or not the submitted evidence shows the petitioner meets the 
regulatory definition of "exceptional ability," i.e., a degree of expertise significantly above that 
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ordinarily encountered in the field. The Kazarian decision does not preclude USCIS from 
discussing the sufficiency of the petitioner's evidence; it merely prescribes the correct procedure for 
doing so. 
The petitioner's initial submission did not indicate which of the six exceptional ability criteria the 
petitioner claims to have met. The director issued a request for evidence (RFE) on April 21 , 2012, 
instructing the petitioner to provide further documentation and explanation in this regard. 
Subsequently, counsel has asserted that the petitioner meets all six of the criteria. 
An official academic record showing that the alien has a degree, diploma, cert!ficate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
As discussed above, the petitioner holds the equivalent of a two-year associate's degree in "welding 
technology" from In the September 15, 2012 
denial notice, the director stated that the petitioner had not shown that his "education and other 
training is significantly above that ordinarily encountered in the field." 
On appeal, counsel asserts that the petitioner's degree meets the plain wording of the regulation, 
because it is an academic degree relating to the area of claimed exceptional ability. The petitioner 
has submitted sufficient evidence to establish that he possesses a relevant degree and meets the plain 
language of this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years offull-time experience in the occupation for which he or 
she is being sought. 8 C.F.R. § 20L1 .5(k)(3)(ii)(B) 
The director acknowledged that the petitioner has submitted the evidence required to meet this 
criterion, establishing his employment at since June 14, 1998, first in 
A license to practice the profession or cert(fication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The petitioner 's initial submission contained no evidence under this criterion. In response to the 
RFE, the petitioner submitted copies of nine certificates acknowledging the petitioner's completion 
of the following training programs: 
• Emergency Aid in the Workplace for Appointed Persons ( 
1999) 
• STEPI- Coiled Tubing ( 1999) 
• Offshore Survival 1999) 
• Basic Fire Fighting , 2000) 
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NON-PRECEDENT DECISION 
• '2005) 
• Water Survival/Swing Rope/Personnel Trans. Basket 
., 2008) 
• Training (Occupational Safety Training, 
Inc., 2008) 
• 
2009)'-----------
• 2010) 
In the denial notice, the director stated: "The record contains no evidence that [the petitioner's] 
license is indicative of a degree of expertise above that ordinarily encountered in the occupation 
rather than a requirement to practice in the occupation." 
On appeal, counsel states that the director's conclusion is inconsistent with Kazarian, because the 
director imposed conditions beyond the plain wording of the regulation. Counsel states: "the 
regulations are to be interpreted in their direct and plain meaning, without added glosses from the 
users, and any questions of . . . exceptional ability are to be resolved in the final merits 
determination." 
The petitioner's appellate exhibitlist includes "1 0 Certifications in the field of oil well coiled tubing 
techniques and downhole tools": 
Coiled Tubing, Step 1, 3/2611999 
Standalone Operation- CT, 12/01/2004 
DEE proficiency CT, 12/01/2004 
CTS: Inflatable Packers, 12/01/2004 
CTS-Execution: CT 
Tools, 12/01/2004 
CTS-Execution: Completion/Tools, 12/08/2004 
CTS: Special CT Skills, 12/08/200<: 
Lean Sigma White Belt Training, 5/06/2005 
ACTive Advanced and TT, 4/30/2010 
DTS Matrix and Production Interpretation Course, 11/12/2010 
The petitioner submitted copies of the listed certificates. The new group of certificates is almost 
entirely different than the collection submitted previously; the two sets have only three certificates in 
common. 
None of the submitted certificates demonstrates "certification for a particular profession or 
occupation" comparable to, for instance, tho::. certification held by a certified public accountant or 
board certification in a particular medical specialty. In those instances, the certification applies to 
the occupation itself. Instead, the petitioner's "certifications" denote training in specialized tasks, 
techniques, and/or equipment. For example, the petitioner's training in "CTS: Special CT Skills" 
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Page 6 
may be useful in the petitioner's performance of his duties, but "Special CT Skills" is not, itself, "a 
particular profession or occupation." 8 C.F.R. § 204.5(k)(3)(ii)(C). 
In the RFE response and on the appeal, the petitioner has submitted copies of a total of 16 different 
certificates that he earned while working for the same employer. The petitioner earned four of those 
certificates on the same day, December 1, 2004, and two more a week later. The petitioner has not 
established that the occupation requires a license to practice the profession or a certification. 
Although the petitioner has submitted numerous certificates , none of the certificates are from any 
government licensing board or private certifying entity with authority over the industry that employs 
the petitioner. The petitioner's completion of numerous, short-term training classes do not establish 
certification for the occupation itself The petitioner's evidence is insufficient to establish that he 
meets this criterion under the plain language of the regulation . 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The petitioner initially submitted copies oflnternal Revenue Service (IRS) Form W-2 Wage and Tax 
Statements showing that Schlumberger paid him $103,217.01 in 2008, $128,491.40 in 2009 and 
$124,432.44 in 2010 (including elective salary deferrals). The petitioner did not provide any basis 
for comparison to show that the document ed c-, nounts demonstrate exceptional ability. 
Following the RFE, the petitioner submitted a letter from personnel manager for 
Well Intervention Services at _ stating the following figures regarding the petitioner's 
"total pay package" as of the following dates: 
Cash Compensation: 
Health, Life & You: 
-Financing Your Future: 
Total: 
12/3112010 
$127,650 
$14,723 
$99 
$30,,978 
$173,4.50 
12/31/2011 
$160,420 
$14,369 
$1,243 
$23,152 
$199,184 
The petitioner documented his receipt, in March 2011, of "an Incentive Stock Option to purchase up 
to a maximum of750 shares of stock at a grant price of$83,885 under the 2010 Stock 
Incentive Plan." The letter, bearing the reproduced signature of , chairman and chief 
executive officer (CEO) of stated: "Stock options are considered the top award for 
outstanding performers." 
In the denial notice, the director stated that the petitioner had not provided any basis for comparison 
to allow USCIS to determine whether the petitioner's remuneration "demonstrates exceptional 
ability ," a requirement found in the plain wcxding of the regulation. On appeal, counsel states: 
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NON-PRECEDENT DECISION 
According to OES wage data from May 2011, there are 238,260 mechanical 
engineers in the United States. Their median wage is $79,230. The top 10% of those 
mechanical engineers earn $119,950. [The petitioner's] earnings are substantially 
above that. Most likely, he places well into the top 5% of mechanical engineers in the 
United States. This is evidence that he has commanded a salary or other 
remuneration which demonstrates exceptional ability. 
To support the above assertions, the petitioner submits a partial printout from the web site of the 
Department of Labor's Bureau of Labor Statistics (BLS). The printout estimated the median annual 
wage for all mechanical engineers at $79,230, and the mean annual wage at $83,550, as of May 
2011. The petitioner's partial printout shows that pay rates for mechanical engineers differ from 
industry to industry, but does not show the rates in the petitioner 's industry. Likewise, it does not 
reflect regional variations in compensation. 
The web page, http: // w\x.w . bls.gov/oes /ctu::.r~.t:-Lt~~~.E'Ji172141.htm (printout added to record January 14, 
2014 ), now shows figures for May 2012 instead of May 2011. The updated figures show a median 
annual wage of$80,580, a mean annual wage of$84,770, and a 90th percentile of$121,530. 
The web page ranks Texas fourth on the list of "Top paying States for this occupation," with a mean 
annual salary of $92,470. A screen capture of an interactive map showing the "Annual mean wage 
of mechanical engineers, by area, May 20 12" provides the following figures for the 
metropolitan area: 
Mean wage: 
Annual: $100,900 
Hourly: $48.51 
Percentile Wages: 
lOth: $61,870 
2 (;" th. <;v·r :j. .. , 40 J • >.jl ,. ,) 
soth: $93,900 
751h: $119,360 
90th: $148,270 
The same web page places "Oil and Gas Extraction" first on the list of "Top paying industries for 
this occupation." Nationally, the mean annual wage for mechanical engineers in that industry is 
$128,650, more than 50% higher than the mean annual wage throughout the field, and significantly 
higher than the 90th percentile figure for the field across all industries. This is significant because 
the 90th percentile figure of $148,270 for is for all mechanical engineers in that area, not 
just mechanical engineers in the oil and extraction industry. The BLS web page does not 
indicate the median salary for the petitioner 's occupation, mechanical engineers who are engaged in 
oil and gas extraction. 
The complete web page shows that employers in Texas pay higher salaries than the national average; 
employers in the ~ _ area pay higher salaries than the Texas average; and the oil and gas 
extraction industry pays substantially 
higher wages than other industries, but does not specify the 
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Page 8 
higher wages. The evidence from the BLS, upon which the petitioner relies on appeal, does not 
establish that his salary or remuneration can be considered evidence of his exceptional ability. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The petitioner's resume listed three memberships: the the 
' The petitioner initiallysu mitted no supportmg evtdence. 
In response to the RFE, the petitioner submitted evidence of membership in the 
and various special interest groups 
The evidence of the took the form of printouts from the ' 
_ web site, bearing the legend " _ 
internal use only." The Communities appear to be web-based bulletin boards and discussion 
forums. The petitioner submitted no evidence to show that _ constitute 
professional associations with members a:::ross the discipline, rather than private communities for 
discussing proprietary matters within a single company. 
In the denial notice, the director stated that the petitioner had not established that "membership is 
indicative of a degree of expertise significantly above that ordinarily required in the profession," 
Counsel, on appeal, once more states that the director did not follow the Kazarian procedure , 
because the submitted evidence is sufficient to meet the plain wording of the regulations (at least 
with regard to some of the memberships claimed). 
The record supports counsel's assertions. The petitioner has documented memberships in at least 
two associations in his field, and has thereby satisfied the plain wording of the regulation. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations . 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
The petitioner's resume, submitted initially, listed four "Awards" and five "Recognitions": 
AWARDS 
• Top Rank at , July 1997 
• 
In 2000 
• Silver Medalist in Recognition of Achievements in Water Shut-Off project for 
. - 2001 
• Outstanding Employee, Stock Option A ward by March 2011 
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RECOGNITIONS 
• ,Recognition for Excellent 
~ -
• Recognition for 
· · l, January 2008 
• Recognition for 
• Recognition for 
• Recognition for 
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Dec 2005 
~ 
, Jan 2006 
===-- ' March 2004 
, April2009 
The petitioner did not document the above claims or explain what form the "recognitions" took. 
In the RFE, the director stated, without further elaboration, "[t]his criterion has been met." The 
petitioner's response to the RFE, therefore, did not address this issue, except to show that the 
petitioner's employer acknowledged the petitioner's publication of a paper in 2004 by presenting 
him with a plaque and offering to reimburse him for the cost of a celebratory dinner. 
In the denial notice, the director stated: 
The awards mentioned appear to have been given based on education and work 
related performance and fail to establish evidence of achievements and contributions 
to [the petitioner 's] industry or field of endeavor. Without more information about 
this recognition, USCIS cannot evaluate whether the beneficiary has been recognized 
for achievements and significant contributions to the industry or field generally. The 
record does not indicate that the beneficiary meets this criterion. 
On appeal, counsel states: 
Perhaps no portion of the Director' :; .kc ision is as strikingly deficient as the assertion 
that the record does not indicate that [the petitioner] has made significant 
contributions to the industry or field. It is more odd that the Request for Evidence 
would inform the petitioner that this standard had been met, but then in the denial 
notice decide it had not been, without any explanation of why the first conclusion was 
wrong. 
The wording of the regulation provides no definition of what constitutes "recognition." Counsel 
asserts that the petitioner has provided sufficient evidence in the form of witness letters, patents, 
journal articles, and employee evaluations. 
Counsel' s statements fail to distinguish betv1een evidence that the petitioner has made contributions 
in his field, and evidence of recognition for significant contributions. The two are not identical, 
because not every contribution is significant, and evidence of a contribution is not necessarily 
recognition for that contribution. Counsel, for instance, asserts: 
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NON-PRECEDENT DECISION 
An issued patent is evidence of an achievement by a governmental organization, in 
this case the U.S. Patent and Trademark Office. A patent which is filed and pending 
is evidence that the business filing the patent l 
evaluates the invention as being significant and worth spending 
thousands of dollars in patent fees to protect their property rights in the invention. 
The record includes references to the petitioner as an "inventor" for whom "product development" is 
a core task. The petitioner has not shown that a patent is a form of government recognition for 
achievements or significant contributions, rather than a routine outcome of the patent application 
process. Likewise, the petitioner has not shown that it is in any way unusual for businesses to seek 
patent protection for their employees' inventions. 
Acknowledgement is not the same as recognition, and the petitioner submitted no documentary 
evidence that his contributions have attracted significant attention outside the context of letters from 
current and former officials, solicited specifically to support the petition. The issue is 
moot, because the petitioner has otherwise established that he meets at least three of the SIX 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The director concluded that the petitioner "has not met at least three of the six criteria" for 
exceptional ability, and stated that "USCIS will not conduct a final merits determination." However, 
the director's evaluation of the six criteria included several elements that should be evaluated as part 
of a final merits determination. As the petiUcEer has established that he meets at least three of the 
six regulatory criteria, users will conduct a final merits determination. 
Final Merits Determination 
The petitioner provided materials from the BLS revealing that the occupation of mechanical 
engineer typically requires a bachelor's degree. The petitioner does not claim to hold a bachelor's 
degree. A credential evaluation in the record indicates that his experience conveys expertise 
equivalent to a master's degree, but that his foreign academic degree is the equivalent to a U.S. 
associate's degree in welding technology. The petitioner's experience falls under a separate 
regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). The petitioner's academic degree is below, 
rather than significantly above, what is ordinarily encountered in the field. 
The petitioner has not established any certification for his occupation. Instead, he appears to have 
provided copies of certificates earned during short-term training courses. The petitioner has not 
established that completion of these courses is a mark of distinction, setting him apart from what is 
ordinarily encountered in his field. 
The petitioner did not establish that his rate of compensation demonstrates exceptional ability, taking 
into account the BLS information indicating that the salaries of mechanical engineers in the oil and 
gas extraction industry in Texas are higher. 
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The petitioner 's two unquestioned memberships are in the _ and the 
_ Counsel correctly noted that these memberships meet 
the plain wording of the regulation, but the petitioner did not establish the membership requirements 
of either association named above. Accordingly, the petitioner has not established that these 
memberships demonstrate a level of expertise significantly above that ordinarily encountered in the 
petitioner's field. 
Alluding to higher-priority immigrant classifications, counsel states: 
"Exceptional ability" refers to a level of skill, competence, recognition which is 
clearly lower than "extraordinary" or "outstanding." So it would be logical that 
membership in professional associations .. . might not be bounded by requirements 
other than paying a membership fee or some routine administrative process. In any 
event, the plain language of the regulation binds the adjudicator. 
Based on counsel's statement, the petitioner appears to be asserting that his membership in 
professional associations that require nothing more than "paying a membership fee," demonstrates 
his exceptional ability. If membership in a given association does not take one's expertise into 
account when judging a membership application, then that association does not require exceptional 
ability, and membership in such an association cannot show exceptional ability. 
The appeal includes additional information about 
showing that he belongs to the 
level. Materials submitted on appeal show that 
document with the heading "The 
the petitioner's third claimed membership, 
at the "Senior" 
is not a professional association. Rather, an 
states: 
The scheme provides proven 
technical contributors with a career path that offers them recognition, reward, and 
influence that parallels an equivalent management progression .... 
The . career progression has four major levels: 
1. Senior: a technical expert contributing independently, typically at a project 
level; 
2. Principal: a technical expert leading locally in a 
3. Advisor: a technical expert leading widely in an entire, 
4. Fellow: a technical expert leading in all and industry/academia. 
Thus, the record shows that is an internal promotion scheme, not a professional association, 
and that the petitioner is at the lowest level of "[t]he career progression." 
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Page 12 
With respect to the petitioner's claimed recognition for achievements and significant contributions to 
the field, the petitioner relies partly on documentary evidence and partly on witness letters. The 
letters contain praise for the petitioner's work, but the documentary evidence does not support the 
claims in the letters. Patents and articles represent contributions to the field, but all patents and 
articles are not equally significant and they are not, themselves, recognition for achievements and 
significant contributions. The petitioner's evidence shows that the recognition the petitioner has 
received for his work has come from within itself, indicative of contributions not to 
the field but to the petitioner's employer. The record shows that Schlumberger has congratulated the 
petitioner for his articles and patents, but the petitioner has not submitted evidence to establish 
whether it is rare or common for employees, or other workers in the industry, to write 
articles or create patentable inventions. Without this evidence, the petitioner has not established the 
level of expertise that is ordinarily encountered in the petitioner's field. Accordingly, the petitioner 
has not provided sufficient evidence to establish that. he is an alien of exceptional ability pursuant to 
8 C.P.R. § 204.5(k)(2). 
Nation?.! Interest Waiver 
The second and final issue concerns the national interest waiver. Without a finding of eligibility for 
the underlying immigrant classification, the petitioner cannot qualify for the waiver. Even if the 
petitioner had established that he is an alien of exceptional ability for purposes of 8 C.P.R. 
§ 204.5(k)(2), he has not established that he qualifies for a national interest waiver. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas f0r 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 u·;;;.m, 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 Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
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Page 13 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections offuture benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The petitioner submitted documentation showing that his inventions had led to the filing of five 
patent applications with the U.S. Patent and Trademark Office. The initial submission showed three 
approved patents and two pending applications, all identifying the petitioner as the sole inventor or 
(with , co-inventor. In terms of his technical writings, the petitioner initially submitted 
copies of three published conference papers, one of which later appeared as an article in the _______ _ 
__ as well as reports and other materials intended for internal use 
within Schlumberger rather than for publication or dissemination throughout the industry. 
Five witness letters accompanied the initial filing of the petition. , a principal 
engineer at : ~ , stated: 
I have known [the petitioner] since he joined my group of in 2002 as a 
new technology implementation specialist. Since then [the petitioner] has been 
working on some of the most important new product development projects in our 
company and the most advanced technologies in this industry, including multi lateral 
reentrance tool, downhole depth control tool, thru tubing zonal isolation tools, 
subhydrostatic well tools, and fiber optics tools. He has made remarkable 
contributions to the success of these projects and technologies. These tools and 
technologies have been commercialized and served the national interests in the oil 
and gas productions. 
is a through tubing zonal isolation tool. This is one of the most 
sophisticated areas in the oil industry .... [The petitioner's] work in 
project has not only significantly contributed to the successful implementation of the 
project but also been essential for improving our understanding of fundamentals of 
zonal isolation techniques. The result of [the petitioner's] feedbacks on 
technology from the oilfields around the world has also been applied to a variety of 
other products. 
The International wide impact of this system is evident from the fact that 
it has been selected as the premium product by our customers around the world, and 
the results of our projects have been presented at numerous international conferences 
and published in premier scientific journals .. .. 
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Page 14 
in ( 
2009. 
NON-PRECEDENTDEC~ION 
In his current position at the 
Texas, [the petitioner] continues to do groundbreaking work. More recently he has 
been assigned to implement another novel product, the optical 
technology. [The petitioner] does critical work in commissioning this new 
technology that has never been tried anywhere in the world. While the multimillion 
dollar project involves premier research across _ in the U.S., [the 
petitioner's] work is exceedingly important because he focuses on ... implementing 
the technology in the actual practicality in the oil fields. 
, now a drilling department program manager at 
, previously vmrked with the petitioner in 
stated: 
research facility 
from 2003 to 
[The petitioner] was one of the most respected people in my previous organization for 
his in depth knowledge of J operations and technology. He was always 
brought in for the most challenging and complicated operations. His strong technical 
background and strong belief in the power of new technology made him an 
indispensable asset for our organization. As a result of all this he was one of the few 
people coming from the operations who were awarded with the title of Senior in our 
technical career progression scheme. 
, stated that the petitioner played significant roles "during the deployment of the DepthLOG 
tool, which was an electromechanical system to enable pressure telemetry for locating casing collars 
in an oil well" and in addressing design and deployment problems in "the development of 
back pressure valve." 
manager at the 
his previous title was " 
_ _ stated that he was previously "the department 
grouo between 2005 to 2008," although he also stated that 
' He stated: 
[The petitioner's] work at was considered as very 
demanding and highly complex m nature, his work initially encompassed the 
requirements as technology implementation coordinator for high 
pressure - high temperature zonal inflation packers. He was the top specialist in the 
group and successfully developed and demonstrated, for the first time, that 
· -- zonal isolation packer could achieve what the conventional packers could 
not. 
[The petitioner] was the first to launch this novel product around the world ... [and] 
proposed several improvements for the technology - formulating 
technology improvement plans which were ultimately approved and adopted by 
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More importantly, he developed a series of the novel ideas to enhance the interface 
between the operational personnel and the technology ... which ultimately led to the 
elimination of known failure modes and extending the technology's operational 
envelope. [The petitioner's] contributiun was rated the highest in the department and 
set new standards for his peer group. 
In addition to his company wide recognition [the petitioner] obtained national and 
international recognition for his technological achievements and is well respected 
within the coiled tubing intervention community .... 
[The petitioner's] innovative and novel technology contributions sets [sic] a truly 
impressive record of success that has had a considerable impact on the USA business 
environments. 
did not elaborate as to the nature of the petitioner's claimed "national and international 
recognition." 
a project manager at~ , stated: 
I have not directly worked nor had a personal friendship with him. However, I was 
very impressed with [the petitioner's] professional understanding and input to coiled 
tubing intervention technologies . . . . 
I met [the petitioner] during the dcv~ i_ np ment of the project at 
· ~- - ... . [The petitioner's] work was among the most 
demanding and challenging in the '- ----··-- o -· down hole tools group. 
He has developed a substantial amount of new technologies in the coiled tubing 
intervention area. His methods have proven to be very useful, and 
departments have started to apply his methods in other branches of operation. Not 
only our group, but others all over the world are seeking [the petitioner 's] expertise. 
provided technical details regarding some of the petitioner's projects, and asserted that 
the petitioner "is well known in the international coiled tubing arena due to the widespread 
recognition of these achievements." Like did not elaborate on this point, 
and the petitioner did not submit evidence shu vving that he "is well known" outside of · · · 
, now "a product manager for the Multi-stage fracturing group of technologies at the 
segment based in " previously worked "at 
- - - -- ·---~ - o- -~-- --- - ~-- - o --- . - - - - -~--~o.- 0 ' • • • as inflatable thru-
tubing tools Product Champion," in which role he used to "communicate and exchange opinions 
with" the petitioner. - ~~- -~ - ~ ~-- -- credited the petitioner's "involvement, drive and initiative" with 
"the current strong position" and continued growth of · "Inflatable Thru-tubing 
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Page 16 
business." In technical detail, stated that the petitioner's "numerous findings from the 
high pressure and high temperature zonal isolation project have greatly advanced our 
view of understanding the technology that has been designed for the packer" and his 
development of "the hydraulic releasable inflation tool for the permanent bridge plug concept." Mr. 
asserted that the petitioner has also "made the mile stone achievements on the exceptionally 
successful field trial of the zonal isolation packer," and "has continued to break new 
ground on the zonal isolation developments." stated: 
[The petitioner's] exceptional and o:.ttstanding abilities, whose groundbreaking 
inventions on the intervention techniques, are of vital importance to oil and gas 
industry [sic]. His accomplishments to date have far exceeded those of the vast 
majority of his peers as evidenced by his productive patent publications to the United 
States patent office as well as premier articles about the coiled tubing new technology 
implementations. 
The director's April 21, 2012 RFE focused on the petitioner's claim of exceptional ability, rather 
than the national interest waiver. Nevertheless, some elements of the petitioner's response to the 
RFE are relevant to the waiver application. Specifically, the petitioner submitted partial copies (each 
missing the first page) of nine conferenc.::: p;1pers including citations to his published work - five 
citations to a paper from 2004, and four to a paper from 2009. Three of the nine citations are self­
citations (two by _ , and four of the remaining six citations are from 
employees of Schlumberger, leaving only two evidently independent citations (both from the same 
first author, , outside of the company that employs the petitioner. 
In the September 15, 2012 denial notice, the director stated: "the evidence submitted establishes that 
the beneficiary is and has been performing the inherent duties of his employment of a mechanical 
engineer," but "[t]he petitioner has not shown that the waiver of the required job offer and labor 
certification would be in the national interest." 
On appeal, counsel states that the labor ;;:,eniiication process can only accommodate "objective 
criteria" such as experience and training, and cannot take into account "subjective criteria such as 
creativity or the capacity to innovate." This general observation about the labor certification process 
does not warrant a blanket waiver for individuals with "the capacity to innovate." It is, therefore, 
necessary to examine how the petitioner, as an individual, merits special consideration. Seeking to 
accomplish this goal, counsel quotes witness letters submitted previously as well as new letters that 
echo previous assertions with additional technical details. Like the letters submitted previously, the 
petitioner's new letters appear to be from current or former employees. 
repeats assertions from his first letter, with additional technical details. 
describes the three patented inventions on he and the petitioner collaborated, specifically "a 
new kind of backpressure valve to maintain a substantially controlled pressure [in] the coiled tubing 
uphole while ALSO [sic] being compatible with a ballistically actuated tool downhole," "invented a 
Dynamic Scale Removal Tool, also for use in the downhole environment," and an "Adjustable 
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Page 17 
Diameter Fishing Tool" used for retrieving items that "become[] stuck downhole." 
asserted that the petitioner's "abilities are exceptional, significantly above the average. He is 
inventive, which is not the norm even for engineers. . 
. . Among his peers at work, he has 
consistently been regarded as outstanding." 
, in his second letter, stated that the petitioner "was the critical worldwide focal point 
for implementing ... [a] project" involving the deployment of"[ coiled tubing 
through-tubing inflatable packer," and "is the sole inventor of a hydraulically releasable inflation 
tool for a permanent bridge plug, for which he received two patents." In language similar to 
wording found in his earlier letter, asserts that the petitioner's "accomplishments to date 
have far exceeded those of the vast majority of his peers as evidenced by his U.S. patents and 
premier articles on new coiled tubing technologies." 
asserts that the petitioner's "expertise in the area of oil field coiled tubing 
intervention techniques ... sets him apart from many of his professional peers." states: 
[The petitioner] has made a positive contribution to the American economy. Any 
incidents in oil/gas wells are extremely expensive. The new developments in the 
coiled tubing intervention tools resulting from [the petitioner's] contributions not only 
provide a more effective way to counter these very expensive problems, but also 
make coiled tubing intervention operations more affordable to oil companies, thus 
less expensive to the U.S. public in oil and gas prices. 
A letter from -
Equipment Center, bears the date September 12, 2011, but the petitioner did not submit it until the 
appeal. who "met [the petitioner] during the first project execution in 
--, in May 2000," stated: 
I felt very comfortable to have him on my design team for developing the Multi­
assembly. [The petitioner] created a remarkable 
design with his unique background a.nd skills. He has a very comprehensive 
knowledge of mechanical design, he is very creative with many original new ideas . 
. . . . I was quite fortunate to have him close to my department to discusses [sic] and 
exchange his valuable opinions on the ~ ~ . 
project that I was managing [in 2002]. . . . [The petitioner's] suggestions and 
recommendations on the engineering design unquestionably gave a positive impact 
on 
_ _ . project. He is without doubt among the top 
specialists in the coiled tubing intervention business. 
Moreover, [the petitioner] was of a [sic] critical importance to the success of the 
· project design, testing and field implementations in 2008 .... [T]he first 
abrasive jetting field trial exceeded expectations and was very successful because of 
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[the petitioner's] excellent design, evaluate [sic] and execution skills. The well 
opened to flow shortly after the treatment and it ... [showed] an 8 fold increase! 
Two further witnesses stated that their new letters are supplements to previous letters written in 
September 2011, but the record does not contain the earlier letters. The exhibit list submitted with 
the initial filing of the petition in November 2011 did not list letters from those witnesses. Their 
new letters, therefore, represent their only statements in the record. 
manager for North America, stated: "I write to supplement my letter of September 18, 2011 ,"but the 
petitioner did not submit that letter. In his October 1, 2012 letter, 1 stated: 
[The petitioner] has made significant intellectual property contributions (patents) to 
the well downhole tool industry tbrmtgh his efforts in - - -
- and his 
assistance to our business in trademark technologies. 
[The petitioner] worked closely with our development teams for several years and 
personally developed new methodologies now being used in coiled tubing operations. 
. . . [The petitioner] has been the key specialist on the zonal isolation 
technologies using zonal isolation packers, which are designed for extreme 
conditions. , a through-tubing inflatable anchoring 
packer, extends critical zonal isolation capability to previously inaccessible, 
chemically 
harsh, and high-temperature environments .... 
[The petitioner] played a crucial roie i{J t the first ever oroiect start uo of the 
PS (production system) on area in March 
2010. to understand the -
fracture and completion program effectiveness on their dry gas wells using combined 
distributed temperature survey (DTS) and production logging technologies .... 
[The petitioner] was the critical focal point to complete the coiled tubing 
project with the Electrical to Optical tool application together with another 
Schlumberger product, the FSI tool to log the well while it is producing, and take a 
[sic] distributed temperature surveys (DTS) and distributed vibration surveys (DVS) 
from the wells. 
. to eliminate one downhole trip per we~l, resulting 
in reduced risk, cost and nonproductive time. The project has been finished very 
successfully and as a result awarded more contracts for my 
department. 
~ coiled tubing services staffing and career manager at referred to an earlier 
letter dated October 1, 2011, not found in the record or the initial exhibit list. , who worked 
with the petitioner in Saudi Arabia and now, like the petitioner, works in _ states that the 
petitioner "plays a crucial role in the transfer of technology from the drawing board to actual 
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Page 19 
practice." asserts that the petitioner is : "most experienced individual" with 
respect to "the , ' and contends: "It is imperative for [the 
petitioner] to remain in the United States as all our research facilities are located in Houston, along 
with the teams conducting the technology development, manufacturing and field deployment." 
The opinions of experts in the field are not without weight and have received consideration 
above. users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 r&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; see also Matter of V-K-, 24 r&N Dec. 
500, 502 n.2 (BrA 2008) (noting that expert opinion testimony does not purport 
to be evidence as to 
"fact"). See also Matter ofSoffici, 22 r&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure 
Craft o.fCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The authors of the quoted letters express strong opinions regarding the value of the petitioner's 
contributions to _ and its operations on behalf of various clients, but the record lacks 
sufficient evidence to allow a comparison between the petitioner's contributions and those of other 
qualified workers in his specialty. 
The petitioner has established that his inventions have yielded several patents. The awarding of such 
patents is not, by itself, evidence of eligibility for the waiver. See NYSDOT, 22 r&N Dec. 221, n.7. 
Similarly, authorship of conference presentations does not establish the field or industry's response 
to the petitioner's work. These types of evidence demonstrate that the petitioner has made 
contributions, but do not establish that those contributions stand out to an extent that would warrant 
the additional immigration benefit of the national interest waiver. 
Counsel has asserted that the very filing of the patent applications illustrates , high 
opinion of the petitioner's work, but the petitioner has not shown that the filing of such patent 
applications is an unusual step that ~ and comparable companies rarely take. Likewise, 
the petitioner has established a small number of independent citations of his presented work, but 
provided no context to show that these citations, though few in number, nevertheless distinguish the 
petitioner from others in his field. Most of the attention the petitioner's work has attracted has come 
from within 
The petitioner has provided extensive inf:;nxmtion about what he does for ~0 
__ , but the 
record does not substantiate claims that his role within the company has been of such particular 
significance that it is in the national interest to waive the job offer requirement that normally applies 
to the immigrant classification he has chosen to seek. Also, as stated previously, the petitioner has 
not established eligibility for the underlying immigrant classification, and therefore he cannot 
qualify for the national interest waiver. 
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Page 20 
The AAO will dismiss the appeal for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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 qf 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.