dismissed EB-2 NIW Case: Forensic Science

MATTER OF S-O-K-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 13, 2019 
PETITION: · FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a forensic scientist, 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. § l 153(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 
t_he 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 Form 1-140, Immigrant Petition for Alien 
Worker, finding that the Petitioner qualified for classification as a member of the professions 
holding an advanced degree, but that he had not established that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. 
On appeal, the Petitioner submits a brief and contends that he is eligible for a national interest waiver 
under the Dhanasar framework. 
Upon de nova 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 
reg·uires 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 sequemial framework: 
Matter ofS-O-K-
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional 3:bility; -
(A) In general. - Visas shall be made available ... to qualified immigrc¾lts 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 
Dhancisar, 26 I&N Dec. 884.1 Dhanasar states that after EB-2 eligibility has been established, 
USCIS ma:y, 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 natimial 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 plari for future· activities; any progress towards achieving the 
proposed endeavor; and the interest of potential customers, users~· investors, or other relevant entities 
or individuals. 1 · 
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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, USC IS may evaluate factors such as: _whether, in light of the nature of the. 
1 In announcing this new framework, we vacated our prior precedent decis_ion, Matter ~lNew York State Department ql 
Transportation, 22 I&N Dec. 2 I 5 (Act. Assoc. Comm 'r 1998) (NYSD07).' · 
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Matter ofS-O-K- . 
foreign national's qualifications or the proposed endeavor, it would be impractical either for the 
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 
A. Member of the Professions Holding an Advanced Degree 
The Director found that the Petitoner qualifies as a member of the professions holding an advanced 
degree, stating that "[t]he Petitioner submitted his Master of Science degree in Mechanical 
Engineering frorri · but the record does not indicate that the Petitioner 
graduated from that university. According to the Petitioner's curriculum vitae and Fom1 ETA-750B, 
Statement of Qualifications of Alien, he received his Master of Science degree in Mechanical 
Engineering from in May 2011 and his Ph.D . in 
Biomechanical Engineering from in December 2014. 
While the Petitioner's April 2015 cover letter accompanying the petition listed "Academic Degrees 
of Petitioner" .among his supporting documents , the record does not appear to include either his 
master's degree or Ph.D. Accordingly, without evidenc,e of the aforementioned academic degrees, 
the Director's determination that the Petitoner qualifies as a member of the professions holding ail 
· advanced degree is withdrawn. 
B. National Interest Waiver 
The remaining 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. On 
appeal, the Petitioner argues that USCIS was "arbitrary and capricious" in denying the petition and 
"abused its discretion by failing to properly follow " the Dhanasar precedent decision. In addition , 
he contends that the Director ' s second request for evidence (RFE) did not provide him with 
sufficient notice of the documentation required under prong two of the Dhanasar framework .3 
Finally, the Petitioner asserts that the Director "failed to examine al I of the evidence provided ." 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. 
• 1 
2 . . 
See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
3 Pages 3 and 4 of the second RFE attachment, however, provided an extensive listing of the types of evidence a 
petitioner may submit for consideration under Dhanasar's seconcl prong. · 
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Matter ofS-O-K-
1. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicates that he seeks to continue his research in biomechanics in the capacity of a 
forensic scientist. 4 He further states: "In this role, [the Petitioner] uses his specialized mechanical 
and biomedical engineering skills to explore the cause, nature and severity of injuries, tolerance 
thresholds, and injury prevention in a variety of accident setti·ngs." In addition, the , Petitioner 
contends that his "work is contributing to a better understanding of the relationship between the 
setting of an accident and the resulting severity of human injuries." We find that t):ie Petitioner's 
proposed fore~sic biomechanics research aimed_ at improving the health and safety of accident victims 
. has substantial merit. 
To satisfy the national importance· requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work.. The record includes letters of support discussing how the 
, Petitioner's proposed work stands to advance the field of forensic biomechanics and improve the . 
health and safety of Americans. For instance, associate professor of mechanical 
engineering at states that the Petitioner's proposed research is of national importance 
"because better understanding the relationship between [the] setting of an accident and the resulting 
severity of human injuries could lead to improvements that prevent or reduce the severity of some 
injuries." In addition, ___ founding principal at the 
asserts that the Petitioner's work aimed at understanding "the cause, nature, and severity of injuries, 
as well as the tolerances and prevention for injury" has the potential for "improving the overall 
. safety and health of people living in the United States."· Furthermore, the Petitioner has submitted 
documentation indicating that the benefit of his proposed research has broader implications for the 
field, as the resl}lts are disseminated to others in the field through scientific journals and 
conferences. 6 As the Petitioner has documented both the substantial merit and national importance 
of his proposed research, we find that he meets the first prong of the Dhanasar framework. 
2. Well Positioned to Advance the J:>roposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes · 
documentation of his · curriculum vitae, published articles, conference presentations, Ph.D. 
dissertation, merpbership in t_he and his 201 7 
The Petitioner also offered documentation relating to his ·patent 
4 Fro~ May 2015 until April 2017, the Petitioner worked as a senior forensic scientist for 
. Since April 2017, he has worked as a senior forensic scientist for , a forensic consulting 
company. As· the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job 
offer from a specific employer. However, we will consider information about his current and prospective positions to 
illustrate the capacity in which he intends to work in order to detem1ine whether his proposed endeavor meets the 
requirements of the first prong of the Dhanasar framework. 
5 was the Petitioner's Ph.D. super':'isor at 
6 For example, principal and senior consultant for notes that the Petitioner 
is "continuing to publish abstracts and articles ... in the field of accident reconstruction." 
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Marter ofS~O-K-
application for a '.and reference letters 
discussing his forensic science work and research projects. 1 
The Petitioner maintains that he has performed "groundbreaking work into-the understanding of 
smooth muscle mechanical characterizations" and that his finding~ "hav~ been utilized by many 
scientists and researchers in his field." · Jn letters supporting the petition , several ofthe Petitioner's 
current and former colleagues· discussed the Petitioner 's research aimed at understanding smooth 
muscle biomechanics. For example, with respect to the Petitioner's do<;toral research relating to 
bladder smooth muscle dysfunctions, indicated that the results of the Petitioner's work 
"made a significant contribution toward a propos[ed] clinical mode.I funded by [National Institutes of 
Health] that could lead to the development of novel cystometric tests for improved overactive 
bladders (OAB) diagnoses and treatments and for the potential identification of novel mechanistic 
targets in the pathophysiology of OAB." 
a biomedical physiologist at stated that the Petitioner discovered · "that 
mechanical stretch can theoretically account for myogenic whole tissue rhythmic contractions. This 
is very important to our laboratory specifically, and will aid in advancing the fi~ld in general." In 
addition, pr.ofessor of engineering at , indicated that the 
Petitioner "developed analytical and experimental techniques that could lead to presenting new 
theories about the interrelated phenomena and mechanisms in smooth muscle at the cellular scope ." 
and , however, do not offer specific examples of how the Petitioner's work has 
generated positive interest among relevant parties, has been implemented by others in the field, or 
otherwise reflects a record of success in his area of research . 
Furthermore, graduate program director in the Department of Mechanical and 
Nuclear Engineering at asserted that the Petitioner's "work and publication record including 
nine international citations from two peer-reviewed published articles demonstrate the impact and 
merit of his research contributions." Similarly, assistant professor in the 
Department of Biomedical Engineering at stated that the Petitioner's work is "cited 
internationally which proves the significant impact of his studies in the. field of smooth 
biomechanics." In the appeal brief, the Petitioner contends that he provided "a citation list showing 
that his research papers have been used by many scientists and researchers in his field," but the 
record does not include this list.9 While claims that the Petitioner's work has been cited.to 
nine times, the record doe.s not contain comparative statistics indicating how often other forensic 
scientists or biomechanics researchers are cited , nor does the .evidence otherwise demonstrate that 
the Petitioner's published and presented research constitutes a record of success or a level of interest 
in his work from relevant parties sufficient to meet this prong . 
7 We discuss only a sampling of these letters, but have reviewed and considered each one. 
8 noted that he previously served on the faculty of the Department of Mechanical Engineering at 
9 We note that the Petitioner's document/exhibit lists accompanying the petition (April 2015) and provided in response to 
the Director's two RFEs (November 2016 and November 2017) do not identify a citation list. 
) 
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Matter of S-O~K-
With respect to his the Petitioner presented an August 2017 
email from the education director informing him of his selection for this "travel award." The 
email states that he received "a complimentary registration to the 2017 at the 
and an $800 travel stipend to help with your travel costs." Regarding 
the -Petitioner's · membership, he submitted an email reflecting that he became an "Early 
Career " member of that society in August 2015 . In addition, he provided documentation indicating 
that he filed a patent application for a " " 
in November 2016. The Petitioner filed his patent application, became a member of and 
received his travel award after he filed the instant petition on May 1, 2015, and therefore this 
evidence does not show his eligibility under the second prong of the Dhanasar framework at the 
time of filing. See 8 C.F.R. § 103.2(b)(l). Regardless, the evidence does not establish that his 
patent application, membership, and travel award represent a record of success in his field or 
that they are otherwise an indication that he is well positioned to advance biomechanics research. 
The record demonstrates that the Petitioner has conducted , pubJished , 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 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 
scientists or otherwise served as an impetus for progress in the field, that it has affected forensic 
biomechanics practices , or that it has generated substantial positive discourse in the broader forensic 
science community . Nor does the evidence otherwise demonstrate that his work constitutes a record 
of success or progress in his area of research . As the record is insufficient to demonstrate that the 
Petitioner is well positioned to advance his proposed endeavor, he has not established that he 
satisfies the second prong of the Dhanasar framework. 
3. 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. In the appeal brief, the Petitioner identifies language in the Director ' s decision under 
this prong that applied to NYSDOT rather than Dhanasar. · For example, the decision stated that 
"[t]he petitioner failed to submit evidence that his knowledge and experience exceed the minimum 
requirements for his occupation." We withdraw the Director's statement in that regard. 
Here, the Petitioner claims that he is eligible for a waiver due to his research skills and 
accomplishments , including his discoveries relating to OAB . 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. 
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Matter of S-O-K-
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 he is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 
I 
ORDER: The app~al is dismissed. 
Cite as Matter ofS-O-K-, ID# 1864546 (AAO Feb. 13, 2019) 
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