sustained EB-2 NIW Case: Nuclear Engineering

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: APR 1 9 l012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
-\\~d~"-' 
~rryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 AAO will 
sustain the appeal and approve the petition. 
The petitioner seeks to classify the beneficiary under section 203(b )(2) of the hnmigration and 
Nationality Act (the Act), 8 U.S.C. § I 1 53(b)(2), as a member of the professions holding an advanced 
degree. The petitioner, energy research/production company, seeks to employ the beneficiary as a 
principal engineer. At the time of filing, the beneficiary was also a doctoral candidate at the University 
of South Carolina (USC). 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 beneficiary qualifies for classification as a member of the professions holding an advanced degree, 
but that the petitioner has not established that an exemption from the requirement of a job offer would 
be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and numerous supporting exhibits, most of them 
duplicates of previous submissions. 
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 
Page 3 
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 regulations implementing the Immigration Act of 1990, 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 a/New York State Dept. a/Transportation (NYSDOT), 22 1&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. 
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 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 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 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 AAO also notes that the regulation at 8 C.P.R. § 204.S(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. 
The petitioner filed the Form 1-140 petition on July 20,2010. On that form, the petitioner indicated 
that the beneficiary's job involves "[m]echanical design of nuclear fuel assembly grid and core 
components. " 
the petitioner's manager of global mobility, praised the beneficiary's 
"authorship of nine (9) papers published in international peer-reviewed journals, with twelve 
Page 4 
(12) years of private industry experience in the field of nuclear power plant design" (emphasis 
in original). In her 21-page statement, listed several of the beneficiary's technical 
accomplishments. Examples follow: 
[A]s a Researcher at the Graduate School of Metallurgy at Fluminense Federal 
University ... [the beneficiary] not only discovered an alternative and less 
expensive process of producing titanium dioxide on an industrial scale, but he 
also acquired the specialized knowledge and skills in hydrometallurgical 
mechanisms, specifically the related reaction kinetics of nuclear materials .... 
In 2000, [the beneficiary] completed his Master's thesis on fuel assembly finite 
element modeling [FEM] for pressurized-water reactors .... His Master's thesis was 
an important advancement in the field as it confirmed the applicability of 16x 16 fuel 
assembly FEM for fuel assembly design and licensing purposes involving structural 
vibrations and stresses under various operating/accident conditions. As such, his fuel 
assembly FEM model was benchmarked against experimental results. Due to its 
more realistic verifications of the design criteria which allow for lighter and 
more flexible fuel assembly designs, [the beneficiary's] fuel assembly FEM 
delivers safer nuclear fuel assembly designs compared to more traditional 
processes .... 
Due to the success of [the beneficiary's] above-contributions, his designs have 
been used to train new engineers and support licensing processes for safe 
operating power plants in the US and worldwide. Sample contracts on knowledge 
transfer and related license processing memoranda evidencing the use of [the 
beneficiary's] work are enclosed as Exhibit F. 
(Emphasis in original.) Exhibit F consists of a 63-page "calculation note" entitled "16NGF Fuel 
Assembly Finite Element Models for ANGRA-l." Markings on the cover page indicate that the 
document contains "Proprietary Information" that is not "Releasable." Page 60 of the calculation 
note indicates that the document is not releasable because it "contain[ s] special methodology or 
calculation techniques developed by or for [the petitioner] using a knowledge base that is not 
available in the open literature." The petitioner also submitted copies of the cover pages of several 
more calculation notes, most of them also labeled as non-releasable. The cover pages do not 
mention "knowledge transfer" or "license processing," or identify any outside party as a licensee or 
transferee. The titles of most of these documents include the words "Analysis" or "Evaluation." 
The materials, therefore, do not inherently establish the extent of the use of the beneficiary'S 
technology outside of the petitioning company. (That being said, the international reach of the 
petitioning company means that the beneficiary can have a very substantial impact on his field even 
without going outside of that company.) 
With respect to the beneficiary'S work for the petitioner,_stated: 
Page 5 
[The beneficiary worked on] an innovative project focused on enhancing the thermal 
performance (i.e., heat transfer) of nuclear fuel rod bundles in the reactor core. By 
improving the heat transfer in rod bundles, it is possible to increase the power 
density in the reactor core and obtain more energy from the fuel. This means 
more electricity produced from the same amount of uranium, resulting in less waste . 
. " Preliminary analyses have demonstrated a potential for heat transfer 
enhancement of at least a factor of two . ... 
In addition, as Design Engineer, [the beneficiary] has been responsible [for] the 
structural design, analysis, and verification of the new APIOOO fuel assembly nozzle, 
spacer grid, and core rod cluster control as well as numerical modeling of the new 
ODEN thermal-hydraulic test loop, a proposed fuel clad design to improve heat 
transfer and safety analysis to license rod cluster controls at ... various US power 
plants. Due to his achievements in these various projects, in June 2010, [the 
beneficiary] was promoted to Principal Engineer. 
then discussed the intrinsic merit and national scope of the petitioner's occupation, for 
instance asserting that nuclear power does not produce significant quantities of the greenhouse gas 
carbon dioxide, and noting the petitioner's market share as a dominant sup~ment and 
fuel to nuclear power plants throughout the United States. The remainder of _ statement 
comprises lengthy quotations from witness letters that accompanied the petition. 
Most of the witnesses are current or former engineers with the petitioning company. One exception 
is Esteves, a professor at Federal Fluminense University in Rio de Janeiro, 
Brazil, as well as the assessor of the president of Brazil's nuclear regulatory authority, the Comissao 
Nacional de Energia Nuclear. He stated: 
[The beneficiary] worked with me at Industrias Nucleares do Brasil for about 10 
years, as engineer, in the design and engineering of nuclear fuel for Nuclear Power 
Plants .... 
I was also project manager in the joint development project of a new nuclear fuel for 
the nuclear power plants Angra 1 (Brazil) and Kori 2 (South Korea). [The 
beneficiary] and I were members of the Brazilian team, which contributed [to] the 
success of the advanced fuel project in the US, Westinghouse Columbia plant, during 
the years from 2001 to 2003 .... [A] numerical model of the fuel to generate artificial 
adverse conditions in the reactor ... was generated and the analysis completed with 
success by [the beneficiary] in a timely manner, confirming flawless performance of 
the advanced fuel in the reactor core .... 
At this moment, [the petitioner] is introducing the new APIOOO nuclear reactor design 
in the market. This new reactor needs high qualified personnel to meet safety 
requirements from more and more demanding customers in [the] US and around the 
Page 6 
world. [The beneficiary's] work is crucial to help satisfy[] the US Nuclear 
Regulatory Commission in the licensing process for safe nuclear electricity 
generation in these new plants. 
USC Pro stated: 
[The beneficiary's] current research at the University of South Carolina is supported 
and funded by [the petitioner]. This particular research involves a novel concept of 
adding turbulizers on the cladding of a nuclear rod to enhance flow turbulence and 
heat transfer. This research involves designing a cutting edge experimental facility to 
simulate experimental conditions to predict the performance in a reactor. [The 
beneficiary] has designed such a facility, which was constructed and instrumented at 
USC .... 
His research can significantly contribute to the growth of the US economy as it will 
dramatically improve the thermal performance of nuclear reactor cores. 
chairman of the ASTM International Committee on Reactive and Refractory 
Metals and Alloys, stated: 
[The beneficiary] is developing a new fuel rod clad design as part of his doctoral 
program. This new design can significantly enhance the heat exchange in nuclear 
fuel bundles, as such increasing the total power density in the core. This means more 
electricity on US power lines at reduced cost. ... At the Columbia factory, [the 
petitioner] fabricates nuclear fuel for most of the nuclear plants in the USA and 
roughly half of the nuclear plants in the world. [The beneficiary'S] contributions 
facilitate[] this activity that promotes energy independence for the USA, which is also 
of security interest. In addition to that, since nuclear energy does not contribute to the 
release of carbon dioxide into the environment, [the beneficiary'S] work positively 
contributes [to] improvement of the global environment. 
a former employee of the petitioner who still performs consulting work for it, stated 
that the petitioner's "expertise ... [is] evident" and "provides [the petitioner] and the United States a 
capability to maintain its leadership in the nuclear fuel area." 
a former consulting engineer with the petitioner who is now a part-time 
consultant for System One, stated: 
I have worked with [the petitioner] over a time span of seven years. During that time 
I have known him to be an engineer with an exceptionally high level of knowledge 
and expertise in mechanical design of nuclear fuel assemblies. An example of this is 
his novel development of a finite element analysis methodology to improve the fuel 
rod mechanical support structure that has resulted in a significant margin increase 
Page 7 
against fretting wear ... [which] has accounted for over 80% of the fuel failures that 
have occurred .... 
[H]e also perfonned evaluations that have uniquely increased the understanding of 
the behavior of fuel assemblies under seismic conditions. It is critical to public safety 
that the nuclear power plant is properly designed to withstand seismic events such as 
earthquakes without the release of radioactivity to the environment. 
Another System One consultant and fonner employee of the petitioner, 
that there is a national need for skilled engineers in the beneficiary'S specialty. 
based blanket waiver in the statute pertains to certain physicians; see section 203(b )(2)(B)(ii) of the 
Act. The assertion that qualified professionals in the beneficiary'S field are in short supply is an 
argument for obtaining, rather than waiving, a labor certification on his behalf. See NYSDOT, 
22 I&N Dec. 222. _ declined to discuss the beneficiary'S specific projects, stating: "I am 
not an expert in the highly technical areas that [the beneficiary] works in, so I cannot provide a 
professional opinion of his work." 
now a senior project manager with the Electric Power Research Institute, described 
his earlier work with the beneficiary at the petitioning company: 
I met [the beneficiary] in late 2002, when he was called upon to develop ... 15x15 
and 16x16 advanced fuel designs .... These new fuels are designed for high bum-up 
capability with advanced design features that minimize grid to fuel rod fretting wear 
and spring/dimple features that minimize undesirable drops in hydraulic pressure. 
During this time, [the beneficiary] demonstrated tremendous technical knowledge and 
expertise in solving complex design problems that helped to deliver safe, reliable and 
high bum-up capable nuclear fuel. ... [A]fter a lengthy design process, a fuel-rod-to­
grid fretting wear issue was discovered ... [which], if uncorrected, could lead to the 
breach of the fuel rod and thus potential release of radioactive species into the reactor 
coolant. ... [The beneficiary] quickly and successfully optimized a fuel rod grid 
supporting structure that mitigated the design shortcomings. The optimization 
procedure developed by [the beneficiary] was considered an innovation and resulted 
in a paper published at the International Conference on Nuclear Engineering 
(lCONE) in Beijing, 2005. 
The petitioner submitted copies of nine papers by the beneficiary, published in journals or 
conference proceedings. These materials establish the beneficiary'S participation in conducting and 
disseminating research, but cannot intrinsically show their own impact or influence on the field. 
On December 16, 2010, the director issued a notice of intent to deny the petition. The director 
asserted that the petitioner's initial submission did little more than spell out the beneficiary's 
Page 8 
professional qualifications, and that the record contained no documentary evidence to corroborate 
witnesses' claims about the importance of the petitioner's contributions. 
the petitioner submitted copies of previou~ exhibits and a 
statement from essentially repeating prior claims. ..._stated that the 
beneficiary's "work was also used as an industry reference for the application of AISI 316L, low 
carbon stainless steel, in nuclear fuel structures. See Exhibit E in our original submission and in this 
submission as Exhibit M" (emphasis in original). Exhibit M is another copy of "16NGF Fuel 
Assembly Finite Element Models for ANGRA-l." A disclaimer on the cover page reads: 
This document is the property of and contains Proprietary Information owned by 
Industrias Nucleares do Brasil / KEPCO Nuclear Fuel Co. Ltd. / Westinghouse 
Electric Company LLC and/or its subcontractors and suppliers. It is transmitted to 
you in confidence and trust, and you agree to treat this document in strict accordance 
with the terms and conditions of the agreement under which it was provided to you. 
This information does not seem to indicate that the document is "an industry reference," but rather 
consists of privileged and controlled information, released only to selected parties (whom the record 
does not identify). 
~ioner submitted four new witness letters, two of them from previous witnesses. _ 
_ repeated portions of his earlier letter, and stated: 
The work that [the beneficiary] performs cannot be done by a minimally qualified 
nuclear engineer. Only an engineer with [the beneficiary's] unique skills and real­
world experience in mechanical design can successfully fulfill his duties .... Only 
someone with unique skills in ... multiple areas, such as [the beneficiary], can fully 
understand the complex interaction of these various mechanical behaviors and safely 
improve the efficiency of the nuclear plants. 
here, appears to equate the term "minimally qualified" with "unqualified," stating a 
minimally qualified worker would be unable to perform the duties of the beneficiary's position. 
The second letter from mostly resembles the first, with added language indicating 
that the beneficiary provides important support for the AP 1 000 reactor proj ect, and "is now training 
on-the-job American workers in the nuclear industry to become productive in this expanding 
market." 
product design manager for the petitioner, stated that the beneficiary's "design 
analysis work directly impacts the development of both new and existing fuel assemblies," and that 
the beneficiary's "computational model ... will be extremely beneficial in increasing the output of 
compacted green [uranium dioxide] pellets per minute." From the wording of the letter, it is evident 
that both of these innovations, described as "key contributions," are unfinished works-in-progress, 
Page 9 
expected to be important to the industry at some point in the future. As such, this letter is not among 
the more persuasive examples in the record. 
product technical manager for the petitIOning company, stated that the 
beneficiary's "knowledge and effort ... have led to a significantly more reliable next generation fuel 
assembly design," and that the beneficiary'S "specialized talents as a fuel designer are vital to the 
industry and nation." 
The director denied the petition on July 26, 2011, stating that the petitioner failed to submit 
objective, documentary evidence to show that the beneficiary'S accomplishments have had a greater 
impact on his field than those of other qualified workers. The director also found that the 
petitioner's "information fails to establish that the area of work is of substantial intrinsic merit to the 
United States and that the benefit to be imparted will be national in scope." 
On appeal, counsel contends that the petitioner has met all three prongs of the national interest test 
from NYSDOT. Counsel states: "The intrinsic merit of [the beneficiary'S] work is in conducting 
research to improve the safety and productivity of nuclear power plants. The national scope of this 
work is evident in its potential to increase energy availability, contribute toward energy 
independence, and reduce environmental damage" (counsel's emphasis). Counsel's assertions, 
supported by evidence in the record, are persuasive. The AAO finds that the beneficiary's 
occupation has substantial intrinsic merit and national scope, and the AAO withdraws the director's 
finding to the contrary. 
Counsel refers to the earthquake and tsunami that breached the Fukushima nuclear power plant in 
Japan on March 11, 2011, an event that occurred after the petitioner's prior submissions. Counsel 
notes that the beneficiary "is the responsible modeler for the redesign of' the rod cluster control 
assembly of the petitioner's AP1000 reactor, a reactor that "is specifically designed to stay within a 
safe temperature range and, in the case of an accident, shut down automatically." The assertion that 
the beneficiary'S system would have avoided the catastrophic damage in Japan remains unverifiable 
conjecture, but the record shows that the beneficiary has been involved in testing the stability of the 
rod system in seismic episodes such as earthquakes. 
There remains the third prong of the NYSDOT national interest test, specific to the beneficiary. 
Counsel states: 
[I]t is [the beneficiary'S] individual contributions to the field of nuclear engineering 
that justify a projection of future benefits and merit a waiver of the labor certification. 
These contributions (which include the development of innovative methodologies to 
strengthen and test nuclear components which improve the safety and productivity of 
nuclear reactors) are well beyond those of an engineer with a comparable 
background. 
Page 10 
As a result, pursuing a labor certification for [the beneficiary's] position would not 
serve the national interest. ... Given the safety, environmental protection, economic, 
and security interests which are potentially impacted by [the petitioner's] ability to 
continue to offer this position to a qualified engineer with proven contributions in the 
field (such as [the beneficiary]), it is in the national interest to grant a waiver of the 
labor certification. If any field is not suited for minimally qualified workers, U.S. or 
otherwise, it is nuclear energy given the enormous stakes involved. 
The AAO strongly disagrees with the last sentence quoted above. Counsel implies that, because 
nuclear energy is so important and yet so dangerous, there should be a blanket waiver for workers in 
that field. Congress created no such blanket waiver, and the existing regulations do not provide for 
one. It is true that there are fields involving "enormous stakes," such as nuclear energy and brain 
surgery, in which a small mistake can have devastating consequences. This does not mean, 
however, that a "minimally qualified" worker is unprepared for those tasks. Rather, it means that the 
"minimum qualifications" must reflect an appropriately high standard. A worker incapable of 
designing the components of nuclear reactors is not "minimally qualified," but rather "unqualified." 
Notwithstanding counsel's fallacious conflation of "minimally qualified" with "unqualified," 
counsel is generally correct that an alien's history of accomplishment can qualify him or her for the 
waiver. The question is not whether a nuclear fuel engineer can, in principle, qualify for the waiver. 
Rather, the question is whether the petitioner has shown that this particular beneficiary qualifies for 
the waiver. 
The documentary evidence of record establishes the beneficiary's involvement in important projects, 
and the intrinsic merit and national scope of his occupation. This evidence, however, does not 
facially establish the importance of the beneficiary's contributions, or establish the extent to which 
the beneficiary's achievements exceeded what one could expect from other qualified workers in the 
field. Many of the exhibits in the record are highly technical, and therefore impenetrable to lay 
readers without a background in nuclear engineering. Given the proprietary nature of much of the 
beneficiary's work for the petitioner, it would be unreasonable to expect widespread dissemination 
of the beneficiary's technical writings. Unlike journal articles, internal documents are generally not 
amenable to heavy citation, and therefore the lack of citation data is of considerably less concern that 
it otherwise might be. The petitioner's recent published articles are more general than his 
proprietary work for the petitioner, for example evaluating various testing methods without 
disclosing the results of individual tests. 
It is here where the value of witness letters lies. Witnesses' factual claims cannot take the place of 
first-hand documentary evidence to establish the facts in question, but they can clarify the 
beneficiary'S findings and give context to their significance. 
It is to be expected that a professional in the beneficiary's field would seek to improve upon existing 
nuclear reactor technology. Therefore, simply to identify improvements cannot suffice to set the 
beneficiary apart from other qualified professionals in the same field. What distinguishes the 
Page 11 
beneficiary is not the existence of these improvements, but their scale and significance. Witnesses, 
for instance, explained the significance of the beneficiary's work to reduce fretting wear on grid­
mounted fuel rods, which is a significant problem with nuclear fuel. 
The director, in the denial decision, did not discuss the petitioner's work except for quotations from 
one witness letter. The director did not explain the finding that the petitioner had not even 
established the intrinsic merit of the beneficiary's occupation. The director's decision cannot stand. 
The AAO finds that the petitioner has submitted sufficient evidence and information to establish that 
the beneficiary's past achievements stand out in his field, and that he is in a position to make further 
contributions. The petitioner has credibly shown that 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 ofthe 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 AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.