Interim Decision #2164 

MATTER OF ESSEX CRYOGENICS INDUSTRIES, INC. 

In Visa Petition Proceedings 

STL—N-968 

Decided by Deputy Associate Commissioner September 22, 1972 

Beneficiary, who is a member of the professions (mechanical engineer) and who 

is otherwise qualified, is eligible for classification as an alien of distinguished 

merit and ability under section 101(a)(15XH)(i) of the Immigration and Nationality Act, as amended, even though he was previously employed with petitioner's engineering staff as a nonimmigrant student for practical training 

purposes; there are unemployed engineers in the State in which his services 

are to be performed; and his continued employment by petitioner might adversely affect the wages and working conditions of the workers in the United 

States similarly employed. (Cf. Matter of St. Joseph's Hospital, Interim Decision 

No. 2166.) 

This case comes forward on certification for decision by the 

Deputy Associate Commissioner, Travel Control. The District Director on August 23, 1972 denied the petition on the grounds that 

it would be inconsistent to hold that the duties the beneficiary has 

been performing as practical training are services requiring distinguished merit and ability; and that to grant the petition would be 

to accord the beneficiary benefits not available to many residents 

of Missouri who are engineers and, according to the Manpower 

Administration, now unemployed. 

The beneficiary, a native and citizen of Iran, was admitted to 

the United States on January 28, 1965 as a nonimmigrant student. 

He studied engineering at Northeastern Oklahoma A&M College 

and the University of Missouri, from the latter of which he 

received the degrees of Bachelor of Science and Master of Science, 

both in Mechanical Engineering, in January 1970 and January 

1971, respectively. The Service thereafter granted him permission 

to accept employment for practical training in his field of study 

and he took such training with the petitioner through July 30, 

1972, the maximum time possible under the regulations. 

The petitioner is a manufacturer of aircraft components with a 

gross annual income of $1,800,000. It alleges that it currently has 

many contracts including that under the F-15 military aircraft 

program on which the beneficiary has been employed. The petitioner claims that during the period of his practical training as a 

member of its engineering staff, the beneficiary proved himself to 

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be a valuable employee and a fine engineer who made a significant 

contribution to the F-15 program, and whose loss now would 

seriously hamper that program and add to its cost. It requests 

that he be classified as a nonimmigrant under section 

101(a)(15)(H)(i) of the Immigration and Nationality Act, as 

amended, to continue in the employ of the petitioner as an 

engineer in design and testing. 

Section 101(015)(H) of the Immigration and Nationality Act, as 

amended, now reads in pertinent part to define a temporary 

worker: 

(H) an alien having a residence in a foreign country which he has no intention 

of abandoning (i) who is of distinguished merit and ability and who is coining 

temporarily to the United States to perform services of an exceptional nature 

requiring such merit and ability; or (ii) who is coming temporarily to the 

United States to perform temporary services or labor, if unemployed persons 

capable of performing such service or labor cannot be found in this country; 

• • • 

The occupation of-engineer is defined as a profession in section 

101(032) of the Immigration and Nationality Act, as amended. 

The beneficiary here by virtue of his education as a mechanical 

engineer is a momber of the professions. Matter of Semerjian, 11 I. 

& N. Dec. 751 (1966). .The Service has long held that a person who 

is qualified as a member of the professions qualifies as a person "of 

distinguished merit and ability" as that term is used in section 

101(a)(15)(H)(1), supra. If, additionally, he is to temporarily perform 

specified services which require his professional abilities, he is 

qualified for "H-1" classification. The petitioner in the present 

case now employs the beneficiary as an engineer and has made an 

adequate showing that he intends to continue temporarily the 

beneficiary's services in that capacity, one which requires a person 

of the beneficiary's training and experience. It is immaterial that 

his earlier employment with the petitioner was for the purpose of 

acquiring practical training. 

The other ground advanced by the District Director for denying 

the petition—the fact that there are now engineers residing in 

Missouri who are unemployed—is equally untenable. In originally 

framing section 101(aX15XH), supra, the Congress chose to include 

only for the 11-2 temporary worker the condition, "if unemployed 

persons capable of performing such service or labor cannot be 

found in this country." This qualification is not present in the H-1 

definition, and it must be concluded that its omission was deliberate. It is consequently only for the II-2 worker that the Service 

requires the petitioner to apply for the Secretary of Labor's 

certification that qualified persons in the United States are not 

available and that the alien's employment will not adversely affect 

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the wages and working conditions of persons in the United States 

similarly employed (8 CPR 214.2(hX3)). 

The Congress last had occasion in 1970 to review and amend 

section 101(a)(15)(H), supra. The resulting P.L. 91-225 was approved on April 7, 1970 and restated the then existing section of 

law, modifying it essentially only to delete the requirement that 

the services be temporary which the H-1 alien is coming to 

perform. It is apparent therefore that the Congress intended to 

relax the H-1 definition rather than to add to its conditions (as of 

course it could have done at that time) the requirement of nonavailability of other capable persons in this country. The thinking 

of the House Committee on the Judiciary, which recommended 

passage of this 1970 amendment, is illustrated in the following 

excerpt from its report (House Report No. 91-851, 91st Congress, 

2nd Session, page 3): 

Experience with the operation of the Immigration and Nationality Act has 

clearly indicated that there is a need to modernize certain provisions regarding 

the -admission of nonimmigrants. Specially skilled foreign nationals coming to 

the United States for temporary employment or training are able to enter this 

country as nonimmigrants under the provisions of section 101(a)(15XH) and (J) of 

the Immigration and Nationality Act. However, certain limitations and conditions contained in these sections have caused difficulties in administration, 

produced hardships, and have, been a source of friction with universities, 

hospitals, international organizations, and other potential employers of distinguished or specially qualified aliens in the United States. 

It is not material to the beneficiary's statutory eligibility for H-1 

classification that there are other engineers in Missouri who are 

unemployed or indeed that his employment by the petitioner 

might have an adverse effect on the wages and working conditions 

of workers in the United States similarly employed. This conclusion is compelled by the difference between the H-1 and H.-2 

provisions in the law. 

ORDER: It is ordered that the visa petition be and the same is 

hereby approved. 

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