dismissed EB-2 NIW Case: Petroleum Engineering

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Identifyingdatadeletedto
preventclearlyunvv~ted
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FILE:
SRC 05 264 50280
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
Office: TEXAS SERVICE CENTER Date: fE.B 1 3 2001
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
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.
~~
7Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced
degree. The petitioner seeks to employ the beneficiary as a flow assurance analyst. The petitioner
asserts that an exemption from the requirement of a job offer, and thus of an alien employment
certification, is in the national interest of the United States. The director found that the beneficiary
qualifies for classification as a member of the professions holding an advanced degree, but that the
petitioner had 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 submits a brief. For the reasons discussed below, the petitioner has not overcome
the director's concerns.
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 requirement 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 beneficiary holds Master's degrees in Chemical Engineering and Petroleum Engineering from the
Indian Institute of Technology, Kanpur and Texas A&M University. The beneficiary's occupation falls
within the pertinent regulatory definition of a profession. The beneficiary thus qualifies as a member of
the professions holding an advanced degree. The remaining issue is whether the petitioner has
established that a waiver of the job offer requirement, and thus an alien employment 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 "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, 101st Cong., 1st Sess., 11 (1989).
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states:
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. 215 (Comm. 1998), 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. Next, it must be
shown that the proposed benefit will be national in scope. 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.
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly
must be established that the alien's past record justifies projections of future benefit to the national
. interest. The 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.
We concur with the director that the beneficiary works in an area of intrinsic merit, flow assurance,
and that the proposed benefits of his work, more efficient oil recovery from deep water offshore oil
rigs, would be national in scope. It remains, then, to determine whether the beneficiary will benefit
the national interest to a greater extent than an available U.S. worker with the same minimum
qualifications.
In response to the director's request for additional evidence, counsel stated: "It is [the beneficiary's]
advanced education and the totality of his experience working in the various areas culminating in
flow assurance for 13 years which makes this specialist an expert." Human Resources
Manager for the petitioning company, asserts that the Department of Labor would not allow the
petitioner to limit the job to individuals with the beneficiary's experience and education. On appeal,
counsel states:
Petroleum Engineering topped the list of projected scarce skills with 77% of the
companies listing that profession as a major concern. [Reference to exhibit omitted.]
The Oil and Gas industry faces [a] key-worker shortage. With few traditional sources
of workers available, executive are forced to find new ways to recruit, develop and
retain key skilled employees. [Reference to exhibit omitted.]
Due to the shortage of U.S. workers the Oil and Gas industry currently faces, a waiver
of the job offer and thus of the labor certification process in [the beneficiary's] case
would be in the national interest. .
Matter ofNew York State Dep 'to ofTransp., 22 I&N Dec. at 221, specifically rejects these contentions.
When discussing claims that the beneficiary in that case possessed specialized design techniques, the
AAO asserted that such expertise would appear to be a valid requirement for the petitioner to set forth
on an application for a labor certification. Id. at 220. The assertion of a labor shortage, therefore,
should be tested through the labor certification process. Id. The issue of whether similarly-trained
workers are available in the U.S. is an issue under the jurisdiction of the Department of Labor. Id. at
221. Special or unusual knowledge or training, while perhaps attractive to the prospective U.S.
employer, does not inherently meet the national interest threshold. Id. Finally, nothing in the
legislative history suggests that the national interest waiver was intended simply as a means for
employers (or self-petitioning aliens) to avoid the inconvenience of the alien employment certification
process. Id. at 223.
Even if we were to conclude that the alien employment certification process was inapplicable in this
matter, the inapplicability or unavailability of an alien employment certification cannot be viewed as
sufficient cause for a national interest waiver; the petitioner still must demonstrate that the alien will
serve the national interest to a substantially greater degree than do others in the same field. Id. at 218,
n.5.
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.
Matter ofNew York State Dep 't of Transp. , 22 I&N Dec. 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 beneficiary's contributions in the field are of such unusual significance that
the beneficiary merits the special benefit of a national interest waiver, over and above the visa
classification sought. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate the alien's past history of achievement with some degree of influence
on the field as a whole. Id. at 219, n. 6. In evaluating the beneficiary'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.
In 1990, the beneficiary received his Master's degree from the Indian Institute of Technology,
Kanpur. He then worked as a project engineer for the Oil and Natural Gas Corporation in Mumbai
through August 2000. In 2002, the beneficiary received his Master's degree from Texas A&M
University. He then worked briefly as a senior process engineer for Granherne, KBR - Halliburton
li!I!I
efore acce ting his current position as a flow assurance analyst with the petitioning company. _
Peterson Chair in Petroleum Engineering at Texas A&M University, asserts that the
ene iciary IS also enrolled in the distance education program at Texas A&M University seeking his
Ph.D.
While most of the evidence relates to the beneficiary's research and work in the United States, we
acknowledge that the petitioner submitted evidence that the beneficiary received cash awards and
certificates of recognition and merit from his employer in India. Recognition for achievements is
one of the regulatory criteria for aliens of exceptional ability, a classification that normally requires
an alien employment certification. We cannot conclude that meeting one criterion, or even the
requisite three criteria for that classification warrants a waiver of the alien employment certification
in the national interest.
••••1 a member of the National Academy of Engineering, asserts that Texas A&M University
aggressively recruited the beneficiary, one of the few international students awarded admission and a
research assistantship. _ asserts that, while a student, the beneficiary worked on a U.S.
Minerals Management Services (MMS) funded project, completing a report now available on their
website. The beneficiary also presented his findings, winning a student a er award for the work.
The beneficiary also published and presented peer-reviewed papers. notes that the
beneficiary has been "nominated to the Minerals, Metals and Materials ociety MS)." _
asserts that as a member of the society, the beneficiary will be part of the OTC 2006 Flow Assurance
Task Force for selecting abstracts for technical sessions. In response to the director's request for
additional evidence, the petitioner submitted a list of abstracts reviewed by the beneficiary.
an independent consultant , asserts that, through his
association with the task force, he knows the beneficiary. affirms that members of the
2006 task force are "people with internationally-recogn~ research / pioneering work
that has impacted the field of Flow Assurance." _ states that the beneficiary
demonstrated his "credentials" through his publications. The regulation at 8 C.F.R. § 103.2(b)(2)
permits a petitioner to rely on affidavits only after showing that primary and secondary evidence is
unavailable or does not exist. Affidavits should be from individuals with "direct personal knowledge
of the event."
- .~ - .
Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opimons
statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795
(Comm. 1988). However, CIS 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; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In support of the statements about the OTC "task force," the petitioner submitted the list of
participants for the TMS/OTC "subcommittee." No official evidence, such as TMS' bylaws, was
submitted to corrobora_ that the members of the subcommittee are part of an
exclusive "task force." _ is not included on the list of members provided by the
petitioner. He does not indicate that he was responsible for selecting the members or explain how he
has first hand knowledge of the selection process. Moreover, the beneficiary did not serve as a
member of this task force or review abstracts until after the filing of the petition. The petitioner must
establish the beneficiary's eligibility as of that date. See 8 C.F.R. § 103.2(b)(12); Matter of
Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, we cannot consider these review
responsibilities or OTC subcommittee membership.
, the beneficiary's immediate supervisor at the petitioning company, asserts that
the beneficiary has worked on projects for Shell, British Petroleum (BP), Exxon, Chevron and
independent companies. The beneficiary authored papers highlighting the flow assurance analysis
performed for a deepwater field and discussing an emerging technology for high-pressure deepwater
fields. The beneficia "developed a novel gas-lift assisted blowdown procedure to mitigate
hydrates." asserts that the petitioner filed a atent disclosure for this procedure and the
patent apphca ion, IS mg the beneficiary and as co-inventors, is in the record.
The final letter is from ~The director concluded that, as a human resources manager, she
was not qualified to explain the significance of the beneficiary's engineering accomplishments.
Counsel does not dispute this conclusion on appeal and we concur with the director.
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.
Matter ofNew York State Dep 't. ofTransp., 22 I&N Dec. at 221, n. 7. Similarly, we will not presume
the beneficiary's influence from the reputation of the journals that published his articles. The petitioner
must demonstrate the influence of the individual articles.
Letters containing mere assertions of industry interest and a positive response in the field are less
persuasive than letters that provide specific examples of how the beneficiary has influenced the field.
In addition, letters from independent references who were previously aware of the beneficiary
through his reputation and who have applied his work are far more persuasive than letters from
independent references who were not previously aware of the beneficiary and are merely responding
to a solicitation to review the beneficiary's curriculum vitae and work and provide an opinion based
solely on this review.
The record lacks evidence that the beneficiary's articles have been widely cited, letters from
independent members of the oil industry affirming the beneficiary's influence beyond his employers or
letters from the petitioner's clients affirming the significance of the beneficiary's work beyond the
typical improvements to engineering inherent within the field.
The record shows that the beneficiary is respected by his colleagues and has made useful
contributions in his field of endeavor. It can be argued, however, that most research pursued by
industry must present some benefit to the employer and its clients. It does not follow that every
researcher working for a company with distinguished clients inherently serves the national interest to
an extent that justifies a waiver of the job offer requirement.
As is clear from a plain reading of the statute, it was not the intent of Congress that every person
qualified to engage in a profession in the United States should be exempt from the requirement of a job
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to
grant national interest waivers on the basis of the overall importance of a given profession, rather than
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not
established that a waiver of the requirement of an approved 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. § 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.