sustained EB-2 NIW Case: Energy Science

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.3 Rm. 3OO0 
.A*,* * Washington, D.C. 20529-2090 
ide~,~jlyi: .'- to 
..- 
prevenl clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
AS SERVICE CENTER Date: MAR 2 0 2009 
SRC 07 800 1901 5 
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 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. 
\J 
,&hn F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be sustained and the petition will be approved. 
The petitioner seeks classification 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. At the 
time he filed the petition, the petitioner was a lead scientist at Champion Technologies, an oilfield 
chemical company in Fresno, Texas. U.S. Citizenship and Immigration Services (USCIS) records show 
that the petitioner now works at 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 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, the petitioner submits a brief from counsel and copies of materials already in the record. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions 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 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 for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep, No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
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 [now (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 significantiy above that necessary to prove the 
"prospective national benefit" [required of aliens seelung to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption fiom, 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 Dept. of Transportation, 22 I&N Dec. 215 (Cornmr. 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 hture 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 whose 
benefit to the national interest would be entirely speculative. 
We also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
Several witness letters accompanied the petitioner's initial submission. 9 
was the petitioner's Ph.D. advisor at Rice University, Houston, Texas. He stated: 
In my research group, [the petitioner] focused his research mainly on gas hydrates. 
During the course of his PhD study, [the petitioner] made several significant 
contributions that have changed the direction of this field of study. . . . 
Page 4 
When water and natural gas, such as methane, come together under high pressure and 
low temperature, they form ice-like crystalline compounds called gas hydrates. One 
volume of gas hydrates can contain up to 180 volumes of gas. . . . 
During gas and oil production in deep water . . . and cold land regions . . . , gas hydrates 
can form and completely plug a pipeline. . . . 
Naturally occurring gas hydrates have been found in the sediments of the pennafi-ost 
regions and in offshore sediments. . . . The amount of carbon (in the form of natural gas) 
trapped in these gas hydrate reservoirs has been estimated by the U.S. Geological 
Survey to be twice that of all the other types of fossil fuels combined. . . . Clearly, if the 
natural gas can be successfully recovered, gas hydrates can provide energy security to 
the United States as an alternative to crude oil. . . . 
Understanding hydrate formation and dissociation processes on a molecular level is the 
foremost step in controlling gas hydrates in the applications presented above. [The 
petitioner] has developed a number of new, carefully designed experiments that have 
changed how scientists and engineers now view the formation and decomposition of 
natural gas hydrates. Prior to [the petitioner's] research, no method was available to 
directly detect gas hydrate behavior in crude oil systems. The molecular level probe that 
[the petitioner] developed has the promise to provide a clear picture of hydrite formation 
and decomposition. Thus, [the petitioner's] research has changed the direction of this 
field of research. 
Section Manager of Flow Management at Champion Technologies, supervised the 
petitioner's work at that company. Ms stated: 
In the summer of 2003, [the petitioner] joined Champion Technologies under my 
supervision as an intern in the gas hydrate area. . . . [The petitioner] conducted an 
investigation of gas hydrate mechanisms using our hydrate apparatus . . . and 
subsequently published his findings in the high impact Journal of Industrial and 
Engineering Chemistry Research. . . . 
By the time he finished his Ph.D. at the prestigious Rice University, he had already 
acquired an international reputation as an expert in the field of gas hydrates because of 
his influential journal publications and presentations at national and international 
conferences. We were very fortunate to have him back as the Lead Scientist of the gas 
hydrate program. 
Notwithstanding the petitioner's documented departure fi-om the company, the AAO will consider the 
petitioner's accomplishments at Champion Technologies insofar as they relate to his overall track 
record of achevement. Ms. described those achievements: 
[The petitioner's] contributions to hydrate prevention during oiVgas productions are 
especially remarkable. . . . [Hlydrocarbon productions in the Gulf of Mexico are 
constantly under the threat of gas hydrate blockages in the flowlines. Once the lines are 
plugged up by gas hydrates, the production has to be shut down and it can take months 
to remediate the problem. . . . The operators mainly use gas hydrate inhibitor chemicals 
and thermal insulation to minimize the hydrate risks. After reviewing the production 
system of a customer, [the petitioner] recommended changes to the existing hydrate 
inhibitor chemical injection program. . . . After implementing the changes with a $3,000 
investment, the injection rate was lowered by 75%. This lower rate reduced costs by 
USD $414,720 for 32 days of implementation. This is only one of the 23 similar 
projects [the petitioner] completed last year alone. . . . 
Worthy of mention is that [the petitioner's] discovery of structured liquid layer at the 
hydrate/water interface significantly benefited the petroleum industry in managing 
hydrate problems. . . . When two [water-containing] particles collide in a hydrocarbon 
flowline, they can easily attach to each other and agglomerate into a larger particle. As 
this process continues, the flowline will be eventually blocked. . . . On the other hand, 
the attraction force between two complete solid hydrate particles without the liquid layer 
is much smaller, and the formation of such particles in flowlines poses less of a threat. 
After recognizing this mechanism because of [the petitioner's] work, the industry can 
now design production systems so that all the water can be converted into small hydrate 
particles, and those particles will be transported along the hydrocarbon stream without 
plugging up the flowlines. . . . 
[The petitioner's] work . . . also improved the design of low dosage hydrate inhibitors 
(LDHI). . . . Traditional hydrate inhibitors, like methanol, require a large quantity to 
prevent hydrate formation, and they are detrimental to the environment. One barrel of 
produced water can require as much as 25 gallons of methanol to inhibit. . . . One barrel 
of produced water may need as little as 0.2 gallon of LDHI to prevent gas hydrate 
blockages. . . .[The petitioner] has been routinely applied in the Gulf of Mexico for 
hydrate prevention. Several of the LDHIs are unique and highly effective formulations 
developed by [the petitioner]. 
[The petitioner's] unique perspective and skill set has led him to groundbreaking 
discoveries and make him the most suited to continue this important research. One of 
these discoveries is that the presence of gas hydrates in the liquid water significantly 
impacts the liquid water's hydrogen bonding network, which was not thought likely by 
traditional wisdom. This contribution enabled us to picture hydrate mechanisms on a 
molecular scale and offered the potential to manipulate hydrate formation and 
dissociation by methodical interference of the coexisting liquid structure. He also 
developed the first technique to directly measure gas hydrates in black oil with 
Page 6 
extraordinary accuracy, which is of paramount importance in hydrate management 
during oil/gas productions. 
. . . One recent technique he achieved was to capture the dynamic behavior of the 
hydrate "guest" molecules in both the hydrate phase and the coexisting liquid phase at 
the same time using a low budget 2MHz NMR equipment. This elegant technique . . . 
can directly measure how fast the hydrates form or dissociate. Furthermore . . . , this 
technique has the potential to be applied in detecting the presence of gas hydrates in the 
sediments while drilling the well. That capability would be the vital first step in the 
economic production of gas from hydrate deposits. 
(Emphasis in original.) fi of Texas Tech University is also an 
adjunct associate professor at &ce University, in which capacity he has collaborated with the petitioner. 
stated his belief that the petitioner's method of directly detecting the hydrate process by 
means of NMR "will be seen as providing an essential component of current and future deep ocean 
petroleum production technology." 
I do not know [the petitioner] personally and therefore this is an independent 
recommendation. I am very much aware of [the petitioner's] research and significant 
and important achievements in the field of natural gas hydrates. . . . [The petitioner's] 
work is truly of an excellent standard and deserves the utmost appreciation. . . . 
Understanding the molecular mechanisms of gas hydrate formation and decomposition 
is important in providing insight into controlling gas hydrates in a number of 
technological applications, including gas and oil transportation in flowlines, natural gas 
storage and gas separation in novel clathrate materials. . . . Current knowledge in the 
field on these formation and decomposition mechanisms is still very limited. 
. . . [I]n order to investigate the hydrate formation and decomposition mechanisms on a 
molecular-level he has employed nuclear magnetic resonance (NMR) spectroscopy to 
observe directly the liquid-to-solid conversion of liquid/natural gas systems to clathrate 
hydrates. One particularly novel and important discovery [the petitioner] has made is 
that he can apply NMR spectroscopy to investigate the transformation of water/crude oil 
systems to the crystalline hydrate phase. . . . 
[His] scientific accomplishments have truly made major impacts in our research. 
I briefly met [the petitioner] in 2004 . . . I was impressed with his insight of complex 
concepts involved in his work and clarity of analysis. . . . 
I believed his research will greatly aid in developing the much-needed mathematical 
models and simulators for use in studying gas recovery schemes from hydrate reservoirs. 
Without a doubt, this tremendously talented young scientist has made substantial 
contributions in the field of gas hydrates and I have every expectation that he will 
continue to do so in the future. 
The letters credit the petitioner with important contributions and discoveries in his specialty. In terms of 
supporting evidence, most of the documentation submitted with the petition consisted of the petitioner's 
published articles, conference presentations, and related materials. The petitioner submitted 
documentation showing that five independent articles contained citations to the petitioner's published 
work. An anonymous reviewer, recommending one of the petitioner's articles for publication, stated: 
"The authors have distinguished themselves in this field and this work represents an important 
contribution that researchers will want to know about." The AAO takes note of this assessment which, 
significantly, was not solicited specifically to assist the petitioner in obtaining immigration benefits. 
On February 29, 2008, the director issued a request for evidence, stating that the petitioner's "work in 
gas hydrate research [does] not distinguish or place them above their peers who do similar work." The 
director instructed the petitioner to "[slubmit documentary evidence to establish that the beneficiary is 
unique within their field." In response, the petitioner submitted new letters, along with evidence of the 
petitioner's ongoing research activities, memberships in professional consortia, and other exhibits. 
The authors of the new witness letters represent a variety of institutions. of ~ulsa 
University, Oklahoma, stated: 
I am the principle [sic] investigator of the Hydrate Flow Performance Joint Industry 
Projects (JIP) and the Vice President of the Research & Technology Development 
program at University of Tulsa. . . . 
I came to know [the petitioner's] unprecedented work on gas hydrates through his 
presentations in national/international conferences and his publications in prestigious 
scientific journals. His findings . . . are changing the landscape of this field. Our 
hydrate JIP has an Advisory Board in place to provide expert opinions and coach 
hydrate research activities. . . . [Olnly those who have made exceptional contributions 
on gas hydrates and who are recognized as leading experts in the field are qualified to 
serve. . . . Current Advisory Board members have unanimously extended [the petitioner] 
an invitation to serve on the board. . . . Since then, he has offered many valuable insights 
and advices on the gas hydrate research. 
Assurance and Integrity Management Engineer at BP Exploration & Production, 
Houston, Texas, stated: 
Page 8 
Because it is closely related to my job fknction, I have been closely following the 
publications in this field [relating to gas hydrates]. To my disappointment . . . research 
progress in this area has been stagnant for decades. . . . 
From [the petitioner's] publication in the prestigious Journal of Physical Chemistry B, I 
was excited to learn that he pioneered the technology of applying Nuclear Magnetic 
Resonance (NMR) to study gas hydrates in black oil. This brilliant breakthrough . . . 
opened a completely new research direction and represented a significant step change in 
the field of gas hydrates. . . . From then on, I have been closely following [the 
petitioner's] work on gas hydrates and flow assurance through journal publications, 
conference presentations, and industrial meetings. 
. . . [The petitioner] successfblly developed AAHI [anti-agglomerant hydrate inhibitor] 
products that can effectively prevent gas hydrate blockages at 80% watercut, which was 
unthinkable to other hydrate researchers and experts. . . . ARer rolling out his novel 
technology to the industry, [the petitioner] is helping many oil producers to resume 
production from the wells that have been previously shut down as a result of gas hydrate 
problems. This is a strong example of how [the petitioner] has influenced his field and 
improved oil production. One example that I am personally familiar with is an oil well 
in Gulf of Mexico (GOM) that has reached a watercut of 82%. (Its liquid production 
stream is composed of 82% water and 18% oil.) With the help of [the petitioner's] 
technology and expertise, this otherwise would be dead well is producing 32 million 
cubic feet of natural gas and 2071 barrels of crude oil every day, which is enough to 
meet the energy consumption of 50,000 American households (including 
transportation). 
Gas Hydrates Team Leader at Champion Technologies in Aberdeen, Scotland, stated: 
I became aware of [the petitioner's] work on gas hydrates before I met him for the first 
time . . . in 2005. At that time, [the petitioner] was already internationally recognized as 
a leading figure in the field of gas hydrates for his ground breaking research at Rice 
University. . . . 
[The petitioner] accomplished what none of his peers could: AAHI products that are 
effective for high watercuts. [The petitioner's] products were tested by independent 
third-party labs and were shown to be effective up to 90% watercut, a steep change 
compared to the 50% watercut limitation that current AAHI technology has. . . . [Tlhe 
new AAHI products significantly extend the life spans of aging oilfields. . . . [The 
petitioner's] technology outperformed all the other AAHI products on the market by a 
huge margin which is another clear example of his impact in the field. 
a Senior Research Engineer at ExxonMobil Upstream Research Company, Houston, 
stated that the petitioner became involved with "the internationally renowned Sakhalin-1 Project, one of 
the world['s] largest oil/gas develo ments operated by Exxon and implemented under severe natural 
and climactic conditions." Dr. d asserted that the extreme conditions of the Sakhalin-1 Project are 
beyond the capacities of "most of the current AAHI chemistries," presenting what "seems like an 
impossible task to many hydrate researchers." Dr. described the petitioner's contribution: 
[The petitioner] discovered that the combination of two high-flash solvents . . . at a 
magic ratio surprisingly stays fluid like at -47OF although each will freeze by itself at 
such temperature. Ths critical breakthrough made it possible to formulate [his] AAHI 
chemistry with this unique solvent combo and generate the final product, which passed 
all the requirements with flying colors. . . . [The petitioner] was bestowed the 
responsibility of consultancy on the Sakhalin hydrate management strategy. 
of China University of Geosciences stated: "The influence of [the petitioner's] work 
on gas hydrates is far reaching in this field. . . . [Tlhe success of economical gas production from gas 
hydrate reservoirs hinges on his continued engagement and research in this field." 
I am currently the Chief Scientist on Multiphase Technology at SPT Group, which 
provides the world-leading dynamic flow assurance modeling program OLGA in the 
energy industry. OLGA is also the only model that has the capability of simulating gas 
hydrate plugging characteristics in real time. OLGA has been extensively applied in the 
energy industry to model the dynamic flow behavior in production flowlines around the 
world. The clients who depend heavily on my expertise on OLGA include almost every 
energy producer in the world, from small ones to the major ones, like BP, Chevron, 
Statoil, etc. . . . 
[The petitioner] ingen[i]ously employed NMR to measure the hydrate behavior by 
monitoring the magnetic response of the water molecules. . . . Using this breakthrough 
technique, [the petitioner] immediately discovered that gas hydrates form a solid shell 
around the water droplets in an oil/water emulsion system. This hydrate shell isolates 
the liquid water inside and significantly slows down the hydrate growth rate. This 
finding is vitally important for accurately modeling the fluid dynamics in the flowlines 
and predicting hydrate plug formation. This phenomenon discovered by [the petitioner] 
is being incorporated into the OLGA program and directly contributing to improved 
energy production worldwide. 
The director denied the petition on June 1 1,2008, stating that the petitioner had not established that he 
"has accomplished anyhng more significant than other capable members of their profession holding 
similar credentials and conducting similar work." On appeal, counsel asserts that the director did not 
give sufficient consideration to the independent witness letters, which establish the significance of the 
petitioner's contributions. Counsel argues that the petitioner "has demonstrated substantive, beneficial 
results of his work that can be attributed to him personallv" (counsel's emphasis.) 
Upon careful consideration, the AAO concurs with counsel. The letters do not simply show that the 
petitioner has earned a reputation among his employers and professors, or that others in the field 
consider his work to hold some vague sort of promise. Rather, a wide range of witnesses have credibly 
attested, in lucid detail, to specific contributions that the petitioner had already made prior to the 
petition's filing date, as well as fbrther work that demonstrates his ongoing achievements. The 
petitioner has not documented heavy citation of his published works, but the claimed significance of his 
work is industrial rather than academic. The record amply demonstrates that the petroleum industry has 
implemented the petitioner's work on a large scale, using hs expertise in gas hydrates both to reduce 
flow blockages and to explore means of extracting energy from an abundant but relatively untapped 
resource. The petitioner's status as a consultant with top industry groups and his activity in major 
international projects, coupled with the figures provided to show the magnitude of the change the 
petitioner has effected, support the approval of the petition. 
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 field of research, rather than on the merits of the individual alien. 
That being said, the evidence in the record establishes that the industry recognizes the significance of 
this petitioner's research rather than simply the general area of research. The benefit of retaining this 
alien's services outweighs the national interest that is inherent in the labor certification process. 
Therefore, on the basis of the evidence submitted, the petitioner has established that a waiver of the 
requirement of an approved labor 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 sustained that burden. Accordingly, the decision of the director 
denying the petition will be withdrawn and the petition will be approved. 
ORDER: 
 The appeal is sustained and the petition is approved.