dismissed EB-2 NIW Case: Electrical Engineering

MATTER OF M-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a researcher in the field of electrical engineering, seeks second preference immigrant 
classification as a member of the professions holding an advanced degree, as well as a national interest 
waiver of the job offer requirement attached to this EB-2 classification. See Immigration and 
Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's 
proposed endeavor has both substantial merit and national importance; (2) that the foreign national is 
well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established that a waiver of the job offer requirement, and thus of the labor certification, would be in 
the national interest. 
On appeal, the Petitioner submits additional evidence and asserts that he is eligible for a national 
interest waiver under the Dhanasar framework. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
requires that the individual's services be sought by a U.S. employer, a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
Matter of M-K-
(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) National interest waiver .... [T]he 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. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884.1 Dhanasar states that after EB-2 eligibility has been established, 
USCIS may, as a matter of discretion, grant a national interest waiver when the below prongs are 
met. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of 
areas such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors 
including, but not limited to: the individual's education, skills, knowledge and record of success in 
related or similar efforts; a model or plan for future activities; any progress towards achieving the 
proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities 
or individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In 
performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the 
foreign national's qualifications or the proposed endeavor, it would be impractical either for the 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm 'r 1998) (NYSDOT). 
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Matter of M-K-
foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, 
even assuming that other qualified U.S. workers are available, the United States would still benefit 
from the foreign national' s contributions; and whether the national interest in the foreign national' s 
contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, 
the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification.2 
II. ANALYSIS 
Although not addressed in the Director's decision, the record demonstrates that the Petitioner 
qualifies as a member of the professions holding an advanced degree.3 The sole issue to be 
determined is whether the Petitioner has established that a waiver of the requirement of a job offer, 
and thus a labor certification, would be in the national interest. For the reasons discussed below, we 
find the Petitioner has not established eligibility for a national interest waiver under the analytical 
framework set forth in Dhanasar. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner is currently a researcher and Ph.D. student at the _ 
focusing his work in the area of soft __ _ toward the goal of 
developing soft wearable sensing technology for healthcare and other applications. Specifically, by 
using soft lithography technology, the Petitioner proposes to replace conventional rigid components 
with soft components to produce wearable electronics that will comfortably move with the wearer. 
The record includes letters of support indicating that the Petitioner's proposed soft wearable 
electronics have a variety of healthcare applications. For example, of the 
notes that the Petitioner's work with sensing technology using liquid metal 
"can be integrated into the next generation of electronic devices, making detection methods 
easy for the general population to use in order to detect harmful chemicals in the air and water." 
Accordingly, we find that the Petitioner's proposed work has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. He submitted several articles about the 
for a consortium of companies and universities funded in part 
by the which focuses on advancing flexible and wearable electronic devices. 
In addition, Dean of the College of Engineering at the 
states that the Petitioner's proposed work "has significant ramifications for the health 
industry, as his discoveries benefit research concerned with the detection and monitoring of human 
disease." 
2 See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner submitted an educational evaluation which establishes that he holds the equivalent of a master of science 
degree in mechanical engineering from an accredited university in the United States. See 8 C.F.R. § 204.5(k)(3)(i)(A). 
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Matter of M-K-
The Petitioner has also submitted evidence which demonstrates that the benefit of his proposed 
research in soft has broader implications, as the results are disseminated throughout the field 
through scientific journals and conferences. Accordingly, as the Petitioner has demonstrated the 
substantial merit and national importance of his proposed research, we find that he meets the first 
prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
documentation of his academic credentials, published research articles, conference presentations, 
patent applications, reference letters, and citation reports. The Petitioner also noted in his appeal 
brief that he provided evidence relating to how he intends to advance his proposed endeavor in the 
United States. This includes an emailed invitation to join the editorial board of the 
as well as another emailed invitation to contribute a chapter 
for a proposed book titled 
As the record does not establish that either of these invitations 
relates to the development of , the Petitioner's proposed endeavor, and he has not indicated 
his intention to accept either invitation, this evidence does not support his positioning to advance his 
proposed endeavor. 
The brief also draws attention to two letters, one from the Petitioner's Ph.D. advisor, 
who indicates that he "would very much welcome [the Petitioner] in my research group 
subject to available funding."4 The other, from of the 
states that he met the Petitioner at a seminar and discussed "possible collaboration." 
The Petitioner has not established that these letters represent a sufficient level of interest from 
relevant parties rendering him well positioned to advance his endeavor. 
The Petitioner submitted several other reference letters in which the writers describe his research 
projects and their potential applications.5 For example, states that based upon the 
Petitioner's research, "manufacturers can create lightweight, stretchable, wearable electronics used 
to monitor fitness activities and health." of 
writes that the Petitioner's "trailblazing methods were capable of producing scalable, 
dense, soft circuits that were able to withstand mechanical forces without losing their functionality." 
However, other experts provided a different picture of the advancements made by the Petitioner's 
work, indicating that they have made a smaller impact on the development of 
states that the Petitioner's research in soft wearable electronics "can be further expanded on by other 
researchers to enhance the manufacturing processes rooted in soft lithography. Just as importantly, 
4 We note that, while information about the nature of the Petitioner's proposed endeavor is necessary for us to determine 
whether he satisfies the Dhanasar framework, he need not have a job offer from a specific employer as he is applying for 
a waiver of the job offer requirement. 
5 Although not all of the letters are discussed here, all were thoroughly reviewed for purposes of this appeal. 
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Matter of M-K-
[the Petitioner's] research development guides the field towards effective realization of usable soft 
electronics." of writes in his letter that based upon the Petitioner's 
research, "researchers can expand on [the Petitioner's] technique to progress the development of 
wearable technology." 
In support of these letters, the Petitioner points to his publication record, and the number of times 
other researchers in his field cited to his published work, asserting that he has a record of success 
that meets this prong of the Dhanasar framework. However, the Petitioner did not provide 
comparative statistics for other researchers in his field, which would indicate whether his research 
constitutes a record of success sufficient to meet this prong, as well as provide a gauge of the level of 
interest from others in his field and support the letters' statements regarding the significance of his 
work.6 
In addition, while the Petitioner submitted partial copies of published articles written by other 
researches which cited his work, many of these citations were to his article concerning the cooling of 
power transformers, which he has not established is related to his proposed endeavor of developing 
Further, the articles which cite to his published work in this area that were submitted by the 
Petitioner indicate that his work represents one of several approaches being investigated which 
propose the use of liquid metal to create soft electronic circuits, rather than the one method which 
will ultimately lead to their production. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his career. While we recognize that research must add information to the pool of knowledge in some 
way in order to be accepted for publication, presentation, funding, or academic credit, not every 
individual who has performed original research or coauthored patents will be found to be well 
positioned to advance his or her proposed research. Rather, we examine the factors set forth in 
Dhanasar to determine whether, for instance, the individual's progress towards achieving the goals 
of the proposed research, record of success in similar efforts, or generation of interest among 
relevant parties supports such a finding. Id. at 890. The Petitioner has not shown that his research 
has been frequently cited by independent researchers or otherwise served as an impetus for 
significant progress in the field, or that it has generated substantial positive discourse in the broader 
soft community. Nor does the evidence otherwise demonstrate that his work constitutes a 
record of success or progress in his area of research. 
On appeal, the Petitioner refers to a 2002 AAO non-precedent decision concerning a researcher in 
the field of liquid crystals who provided evidence of 16 independent citations to his work. However, 
we note that the referenced decision was adjudicated under a prior framework and the Petitioner has 
6 The Petitioner provided a citation report from in response to the Director's request for evidence which 
showed that his work had been cited on 50 occasions. However, we note that 22 of those citations were to a paper 
written by the Petitioner about radiators in electrical power transformers, an area of engineering research which the 
record does not establish relates to his proposed endeavor. The Petitioner's remaining publications were each cited 
fewer than 6 times. 
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Matter of M-K-
not explained the relevance of the number of citations to a researcher in a different field from his 
own, more than 15 years ago, in analyzing his own record of success. Moreover, this decision was 
not published as a precedent and therefore does not bind USCIS officers in future adjudications. See 
8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of 
the individual case, and may be distinguishable (as is the case here) based on the evidence in the 
record of proceedings , the issues considered, and applicable law and policy. 
The Petitioner also offers evidence that he is named as a co-inventor on three patent applications 
filed in South Korea. Two of these applications concern cooling methods for power transformers, 
while the third more closely parallels the Petitioner's proposed work in the development of soft 
The Petitioner provides reference letters from experts, including those mentioned above, 
which describe his research and its results in great detail, but these letters do not indicate that the 
innovations in the patent more closely related to his proposed endeavor has been commercialized or 
implemented in the his field, or have otherwise generated positive interest among relevant parties at 
a level demonstrating that he is well positioned to advance his proposed endeavor. Accordingly, 
considering all of the issues detailed above, we find that the Petitioner does not meet the second 
prong of the Dhanasar framework. 
C. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. Here, the Petitioner claims that he is eligible for a waiver because a labor certification 
would not account for his education, skills, and expertise in his field. In addition, he asserts that his 
contributions would be of such value to the field in the United States that he would benefit 
the United States despite the availability of qualified workers. However, as the Petitioner has not 
established that he is well positioned to advance his proposed endeavor as required by the second 
prong of the Dhanasar framework, he is not eligible for a national interest waiver and further 
discussion of the balancing factors under the third prong would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite three prongs set forth in the Dhanasar analytical 
framework, we find that he has not established that he is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-K-, ID# 1480717 (AAO Aug. 23, 2018) 
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