sustained EB-2 NIW Case: Mechanical Engineering

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
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prevent clearly urn wilx~sntt..~ 
 U. S. citizenship 
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 and Immigration 
Office: TEXAS SERVICE CENTER Date: 
SRC 07 800 22691 
 JAN 1 3 2009 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 8 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. 
& F. Grisso 
Administrative Appeals Office 
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. 5 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a senior engineer for the Trane Company, a heating, ventilation and air 
conditioning manufacturer in Clarksville, Tennessee. The petitioner asserts that an exemption fiom 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 fiom the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a witness letter and a brief fi-om counsel. 
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 (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 [now U.S. Citizenship and Immigration Services] 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 Dept. of Transportation, 22 I&N Dec. 215 (Comrnr. 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 also note that the regulation at 8 C.F.R. $ 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. 
In an introductory statement submitted at the time of filing, counsel stated: 
[The petitioner] is an outstanding researcherlengineer in the field of Mechanical 
Engineering. . . . He displays remarkable expertise in the study of turbulent flows as well 
as technology development in Heating, Ventilation, and Air-Conditioning ("HVAC") 
systems. [The petitioner] has employed hs remarkable expertise to make outstanding 
contributions to this field. . . . 
The work that [the petitioner] has accomplished in the field has caught the eye of other 
researchers in the field and, in some cases, has influenced their own research. . . . 
It is therefore well established that [the petitioner] has produced highly significant 
contributions that have received considerable attention and have markedly influenced his 
field. . . . 
[The petitioner's] exceptional past accomplishments are not only recognized by his 
immediate colleagues, but also by independent, objective reviewers of his work. 
(Counsel's emphasis.) Six witness letters accompanied the petitioner's initial submission. Some of 
these witnesses have worked closely with the petitioner, - of Lehigh 
University, Bethlehem, Pennsylvania, where the beneficiary earned two graduate degrees, stated: 
[The petitioner's] research interest was in the area of fluid mechanics with a 
concentration on multiphase flows. While multiphase flows are widely used in 
industries, this type of flows is very complicated and was a relatively new research area 
with many mysteries. Wall-bounded multiphase flows are commonly found in power 
generation, chemical and HVAC industries. . . . During his 4-year research, [the 
petitioner] successfully discovered many interesting behaviors of two-phase flows in 
turbulent boundary layer. His research results enhanced the understanding of 
multiphase flow behavior, which can be used for better design and optimization of 
industrial processes and systems, and improve their efficiency. 
. . . In addition, he performed Computation Fluid Dynamics (CFD) analysis to 
numerically simulate complicated flow behaviors. CFD analysis is an advanced 
technology for stimulating fluid flow, heat and mass transfer with a powerful computer 
and he greatly extended understanding of the complicated multiphase flow he 
researched. 
, now Vice President of Precision Cooling Engineering at Liebert-Emerson Network Power, 
stated: 
I met [the petitioner] at York International in 2002, when, as Director of the Advanced 
Technology Engineering Department, I interviewed and employed him as a mechanical 
engineer. 
[The petitioner's] first assignment with York was to perform Computational Fluid 
Dynamics (CFD) analysis on refrigerant liquid carryover in flooded evaporators. In our 
chiller products using flooded evaporators, it was observed there was liquid carryover 
fiom [the] evaporator to the compressor, which degrades system performance and could 
cause potential damage to the compressor. However the cause of the liquid carryover 
was not clearly understood and the design rule was based on ad hoc principles, because 
Page 5 
it was so complicated. 
 [The petitioner] brought us the advanced two-phase CFD 
technique so that this complicated two-phase flow could be simulated inside the 
evaporator and we can better understand its physical characteristics. . . . Based on [the 
petitioner's] work, the critical design parameters were identified and new design rules 
were established, which would save almost half a million dollars if all the evaporators 
were redesigned. 
I know [the petitioner] through his work in the thermal-fluid sciences in the area of 
HVAC. I had occasion to interact with him on a technical level when one of his past 
employers, York International, used me as a consultant to independently review their 
research program. At that time, I became aware of [the petitioner's] work in technology 
development. I was impressed by his research and development in the application of 
computational field dynamics (CFD) to HVAC systems. . . . 
In one particularly challenging project, [the petitioner] used CFD to simulate the two- 
phase flow resulting in refrigerant liquid carryover fkom evaporators in chillers. 
Numerical simulations of this kind are not straightforward, and his novel approach 
pushed forward the state of the art. . . . [The petitioner's] work in this area is extremely 
important to the energy efficiency of chiller systems used in petrochemical processing, 
refrigeration, and space conditioning for human comfort. . . . 
In view of [the petitioner's] outstanding work in the development of HVAC technology, 
it is my professional opinion that [the petitioner] shows an extraordinary level of 
knowledge and skill in CFD and HVAC systems. The work that he does will have 
impact on petrochemical processing and refrigeration systems in addition to HVAC 
technology. Taken together, these systems account for roughly one third of the end-use 
energy consumed by our country. 
I hired [the petitioner] in January 2007, as the first New Technology Introduction (NTI) 
engineer, with an initiative to enhance Trane's ability to tackle the big challenge of 
raising the energy efficiency to a significantly high level. . . . 
[The petitioner] has already demonstrated significant value. He started a micro-channel 
heat exchanger program to enhance heat transfer performance with micro-channel 
technology. He innovatively modeled, designed and optimized micro-channel 
condensers for various unitary products with input of our modeling team and vendor. 
With this technology, system efficiency can be raised and meanwhile the size and 
refrigerant charge will be reduced. 
[The petitioner] is also in charge of the evaporative condenser development for our large 
commercial rooftop product. . . . [The petitioner] quickly tackled this project using his 
excellent analytical approach and created a simulation and design model to simulate this 
complicated process. He will use the model to design and optimize a family of 
condensers for the entire product line. Initial test data has shown very good agreement 
with the model predication [sic]. 
Several witnesses claim not to know the petitioner personally. , a research scientist 
at the National Institute of Standards and Technology, stated: 
I have not worked with [the petitioner]. I base my recommendation solely on [the 
petitioner's] research and development achievements. . . . 
[The petitioner's] research work on fluid mechanics and heat transfer in chiller 
evaporator, condenser, and oil separator caught my attention because I am also working 
in the HVAC area. His unique approaches to tackling the challenges in refkigeration 
systems were very impressive to me. 
[The petitioner] introduced Computational Fluid Dynamics (CFD) analysis into research 
on real refi-igeration systems and components. . . . [The petitioner's research using CFD 
analysis with cutting-edge two-phase flow modeling techniques significantly improved 
our ability to design chillers. . . . These advances were made possible partly because [the 
petitioner's] research fixthered the understanding of how refrigerant liquid droplets 
interact with vapor flow in the evaporators. . . . 
[The petitioner] has also demonstrated the rare ability to apply sophisticated CFD 
analysis to real world . . . refi-igeration oil separators. . . . His model predicted the 
complicated multiphase, turbulent flow and reasonably predicted oil separation 
efficiency. As far as I know, very few people can accomplish what [the petitioner] has 
done and continues to do in this area of research. 
To indicate that the petitioner's impact is not limited to the HVAC industry, , Research 
Scientist at the Institute of Marine Sciences of Andalucia, Spain, stated: 
Although I do not know [the petitioner] personally, I became aware of his research and 
have read his papers on the subject of turbulent two-phase flows, as it is of interest to me 
and my work. I am extremely impressed by his research and the great accomplishments 
he has accomplished in his research area. 
My research interest is in interdisciplinary studies, applying new advances in fluid 
mechanics to the field of ecology. For example, my work involves studying motion of 
pelagic particles in turbulent flows in the sea. These particles export marine carbon 
Page 7 
from the surface to the deep ocean and, therefore, are a key component of the role the 
ocean has in the planetary geochemical cycles. 
[The petitioner's] research in gas-solid two-phase turbulent flows inspired me. The 
traditional view assumes that an increase in turbulence bears ecological advantages for 
non-motile groups like diatoms that, otherwise, would settle in deep and unlit waters. 
However, this assumption has no theoretical ground. [The petitioner] did exceptional 
numerical and experimental investigations, introducing the effects of the lift force on 
particle motions and distribution in gas turbulent flows. We followed this new finding 
and applied it in my research. We carried out experimental studies in the water using 
different turbulent intensities. We found that phytoplankton settling velocity increases 
when turbulence intensifies ffom a lower value to a higher value, typically recorded in 
the upper mixed layers of lakes and oceans. This finding is similar to the phenomena 
[the petitioner] unveiled in gas-solid turbulent flow. If [the petitioner] had not 
uncovered this phenomenon, it would have taken us a long time, if ever, to have 
discovered what we did in the phytoplankton settling velocity. 
The petitioner also submitted copies of published articles, manuscripts, and conference abstracts, but no 
documentary evidence of the impact of those writings. 
On December 20,2007, the director issued a request for evidence. The director acknowledged that the 
petitioner "submitted one letter of recommendation stating that the author had applied the beneficiary's 
findings in his own research." The director requested "additional evidence that the beneficiary's 
research has had an impact in his field," such as documented citation of the petitioner's published work. 
In response to the notice, the petitioner submitted copies of two articles containing citations to the 
petitioner's work. One of the citing articles is a 2004 article by- refixring to his work 
with phytoplankton as discussed in his previously submitted letter. Two citations is not, by itself, strong 
evidence of impact in the field, but letter illuminates the value of the petitioner's contribution 
to the project described in that letter. 
The petitioner also submitted additional letters from independent witnesses. - 
of the University of Birmingham, United Kingdom, stated: 
Though I am not a colleague of his, I met [the petitioner] and began to know about his 
work when I attended the 4th International Conference on Multiphase Flow in New 
Orleans in 2001. I was very impressed by his presentation at the conference, and also 
read his paper published in 2006 in Experimental Thermal and Fluid Science. 
. . . Being inspired by [the petitioner's] findings in particle motion and distribution, we 
are going to investigate how the slip-shear lift force affects bio-film growth and fouling, 
which may explain some . . . phenomena we did not know. [The petitioner's] article 
also promoted us [sic] to start building a similar particle tracking model to study particle 
behavior in our processes. In fact, [the petitioner's] contribution in particle behavior 
close to the wall in wall-bounded two-phase flows speeds up our work and broadens the 
scope of our research projects. 
of the University of Waterloo, Canada, stated: "1 have no personal or working 
relationship with [the petitioner]. However, I consider his research activity on two-phase flows . . . to 
be remarkable." 
, a research scientist at Australia's Commonwealth Scientific and Industrial Research 
Organization, stated: 
I do not know [the petitioner] personally and my assessment is purely based on his 
scientific research work which he has published in various publications. 
. . . My research activity primarily focuses on developing Computational Fluid Dynamic 
(CFD) models to simulate wall-bounded multiphase flows which prevail in coal-fired 
power plants. I am the chief reviewer of gas-solid flow papers for the organizing 
committee of [the] International Conference on Computational Fluid Dynamics in the 
Process Industries. . . . 
[The petitioner's] work has greatly improved our understanding on turbulent boundary 
layer in gas-solid flows. His work on this topic . . . revealed detailed particle motion and 
distributions in a vertical turbulent boundary layer which, in my knowledge, have not 
been studied as comprehensively in any earlier published literature. Hence, this is an 
original and key contribution to the scientific community. 
. . . [The petitioner's] work is impressive in that the experiment clearly demonstrates the 
importance of slip-shear lift force on the particles and yet the existence of which is 
commonly ignored in most studies. I should also point out that his research results also 
helped us validate and improve our own CFD model. 
an assistant professor at the University of Maryland, Baltimore County, stated: 
While I have not worked with [the petitioner], I was very impressed by his significant 
and original contribution . . . [The petitioner's] research provided insight into particle 
motions and distributions inside two-phase boundary layer close to the wall surface. . . . 
His unique measurement technique for two-phase flow inside the boundary layer is quite 
a significant contribution, because it extends our horizon to multiphase near-wall 
behavior which is 111 of mysteries. . . . 
[The petitioner's] exceptional scientific achievements have had a very important impact 
on multiphase research. 
The director denied the petition on March 3 1,2008. The director acknowledged the witness letters but 
observed that the petitioner had not shown fiequent citation of his published work. The director stated 
that the petitioner had not established that he had "influenced [his] field overall to a greater extent than 
other researcherdengineers in this specialty." 
On appeal, counsel argues that the petitioner's influence on his field is evidence fiom- 
independent witness letters submitted previously, as well as a newly submitted letter fiom 
an assistant professor at West Virginia University. I 
 states: - 
I know about [the petitioner's] contributions fiom reading his outstanding published 
works. . . . 
Overall, I must state that [the petitioner's] achievements in multiphase flows and 
Computational Fluid Dynamics (CFD) are remarkable and had great impact on the field. 
. . . His research has important impact on any CFD simulations for multiphase flows 
within the presence of the wall, by enhancing the accuracy of the law-of-the-wall for 
different phases in multiphase flows. The wall-bounded turbulent multiphase flows are 
very common in industrial processes, i.e. power generation, oil, chemical, engine 
industries and so on. [The petitioner's] research definitely had impact on my research 
on the spark ignition (SI) engine. 
The AAO acknowledges that the petitioner has not established widespread citation of his published 
work. At the same time, as an engineer, the petitioner's specialty is very much an applied science rather 
than a theoretical one, and therefore it is appropriate to judge the extent to which other engineers have 
applied the petitioner's findings in their work. By submitting a number of statements fi-om independent 
experts around the world, the petitioner has established that, while his work may not be widely cited, it 
is widely implemented. The petitioner has established that his work has influenced research not only in 
the HVAC industry, but in divergent fields where fluid dynamics play an important role. 
Rather than simply offering vague and general praise for the petitioner's findings, or for unspecified 
"promise" at the beginning of the petitioner's career, the witnesses have demonstrated specific, concrete 
ways by which the petitioner's findings have influenced others. Also, the petitioner has not merely 
showed that his findings are useful - it is reasonable to expect that all research findings are useful, as 
there is little incentive to fund or perform research that produces nothing of use. Rather, the petitioner 
has demonstrated that his research has facilitated research in other areas that, otherwise, would have 
been considerably more difficult or even impossible. Thus, the petitioner has demonstrated sufficient 
impact on his field to quali@ for the national interest waiver. 
Also important, the petitioner's ongoing employment continues to involve comparable areas of 
inquiry. The record does not indicate that the petitioner's contributions began and ended with his 
graduate studies, and ceased when he entered private industry. Because the national interest waiver 
is intended to secure prospective benefit to the United States, it is important that the petitioner has 
established the capacity for continuing contributions in his post-academic career. 
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 engineering community recognizes the 
significance of th~s 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. $ 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.