dismissed EB-2 NIW Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-H-K-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 1, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a research engineer specializing in smart factories, 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 the 
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 Nebraska Service Center denied the Form I-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 additional documentation and argues that he is eligible for a 
national interest waiver due to his smart factory development expertise and experience. In July 
2017, we issued a request for evidence (RFE) asking the Petitioner to provide evidence satisfying the 
three-part framework set forth in Dhanasar. In response, he provides further evidence and contends 
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. 
Matter ofS-H-K-
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. -
(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 recently 
set forth a new framework for adjudicating national interest waiver petitions. See 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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Corum 'r 1998) (NYSDOT). 
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Matter ofS-H-K-
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 
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? 
II. ANALYSIS 
A. Advanced Degree 
The Petitioner previously provided certificates from University stating that he received a 
Master of Science (1999) and a Ph.D. (2004) in industrial engineering. In response to our RFE, he 
offers an academic credentials evaluation indicating that his degrees are the equivalent of a Master 
of Science degree and a Doctor of Philosophy degree in industrial engineering from an accredited 
U.S. college or university. See 8 C.F.R. § 204.5(k)(3)(i)(A). Accordingly, the Petitioner qualifies as a 
member of the professions holding an advanced degree. 
B. National Interest Waiver 
The next issue to be determined is whether the Petitioner has established that a watver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. The 
Petitioner indicates that he is an industrial engineer specializing in the research and development of 
smart factories. At the time of filing, he was serving as a principal consultant for 
in Korea. 
The Petitioner contends that his research concerning smart factory technologies "will help 
manufacturing facilities in the United States move from traditional models into Smart Factory 
setups, which will lead to increased production, safer working environments for factory employees, 
and a reduction of waste." In Part 6 ofthe Form I-140, under "Basic Information about the Proposed 
Employment," the Petitioner listed a job title of "Industrial Engineer" and described this job as "[a] 
branch of engineering which deals with the optimization of complex processes or systems." In our 
RFE, we requested further information and evidence regarding his plans for future work in the 
United States. We noted 
that, as the Petitioner is applying for a waiver of the job offer requirement, 
he need not have a job offer from a specific employer. Nevertheless, information about the nature of 
his proposed endeavor is necessary for us to determine whether it has substantial merit and national 
importance, and whether he is well positioned to advance such an endeavor. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
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Matter ofS-H-K-
In response to our RFE, the Petitioner maintains that he is a "Research Engineer specializing in the 
research and development of Smart Factories." He asserts that he "will be able to secure 
employment in the United States" and that "[t]here are many companies in the United States who are 
investing in Smart Factories." The Petitioner further contends that and 
are examples of"companies in the United States who have pledged money in the research and 
development of Smart Factories" and that "they will need Research Engineers like me." He does 
not, however, identify the capacity in which he will work, either as a consultant or a direct 
employee; the nature and level of the position he might seek, if applicable; or the specific focus of 
the projects he intends to undertake. Nor does the record include documentation indicating that the 
aforementioned companies have expressed interest in employing the Petitioner or utilizing his 
consulting services. 
Additionally, the Petitioner provides a slide presentation that he characterizes as his "Future Plan" 
for work in the United States. This plan, however, does not specify the research and development 
projects he will undertake or otherwise sufficiently clarify his proposed endeavor in this country. 
While the plan offers general information about the processes involved in building a smart factory 
including strategy, operations, and methods, it does not identify U.S. projects, employers, or clients 
the Petitioner will serve as a research engineer or consultant. Page 20 of the plan contains a slide 
that states ' ' but no 
further details are included and the Petitioner has not otherwise indicated or documented that he 
intends to work for in the United States. Furthermore, although Page 18 references an 
investment of $46,814,159, the Petitioner does not indicate the source of the investment or 
demonstrate its availability for funding his research. Lastly, page 29 includes a graphic stating that 
the Petitioner intends to seek a job at a "consulting firm in USA (California or Texas)" in 2018 and 
to continue "consulting and project job in USA" in 2019, without further explanation. 
Despite our request for clarification, the Petitioner has not provided sufficient information and 
evidence 
regarding his specific proposed activities in the United States. In Dhanasar, we held that a 
petitioner must identify "the specific endeavor that the foreign national proposes to undertake." !d. 
at 889. The record does not clearly explain the Petitioner's proposed endeavor such that we are able 
to determine, without additional information and evidence, that his work will have both substantial 
merit and national importance and that he is well positioned to advance his proposed endeavor. 
Furthermore, the Petitioner has not established 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. 
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 eligibility for or otherwise merits a national interest waiver as a 
matter of discretion. 
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Matter ofS-H-K-
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-H-K-, ID# 551127 (AAO Nov. 1, 2017) 
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