dismissed EB-2 NIW Case: Optical Physics

U.S. Citizenship 
and Immigration 
Services 
In Re: 6985375 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 28, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an optical physics researcher, 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). 
The Director of the Texas Service Center denied the petition, concluding 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 a brief asserting that he is eligible for 
a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. -
(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 ofjob 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 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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. 
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 foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
1 In announcing this new rramework. 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). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 4 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. 
At the time of filing, the Petitioner was employed as a senior application engineer consultant and 
technical leader for.__ _____ __. an electronic design automation firm, in South Korea. 5 With 
respect to his prospective work in the United States, the Petitioner provided July 2017 email exchanges 
with two managers atl I a U.S. semiconductor manufacturer, relating to his interest in 
design enablement and advanced I I engineering positions. 6 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that his proposed endeavor involves conducting 'I !physics research on 
semiconductor design and fabrication, along with modeling and numerical analysis in computational 
litho ra h ." He ex lained that he plans to continue his research aimed at devr1opilg I I 
ljll.iliie].ing algorithms, machine learning applications in extreme 
lithographyl__J and I I random access memory (MRAM) devices . .__ _____ ____. 
The record includes articles discussing economic growth in the smartphone market, the value 
consumers place on reliable wireless communications, the ways mobile devices have changed how 
people interact, and U.S. leadership in high performance computing. In addition, the Petitioner 
provided information about the evolution of data storage and the amount of data stored in the United 
States. The record therefore supports the Director's determination that the Petitioner's proposed 
endeavor has substantial merit. 
To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. In addition to the aforementioned information about wireless devices, 
data storage, and high performance computing, the Petitioner offered letters of support discussing the 
potential benefits of his proposed research and how it stands to advance his field. For example,D 
I I associate professoc::J I University of I I asserted that the Petitioner's 
research aimed at improving modeling and development stands to advance semiconductor 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elab.,>,,<.L->1""'-'-'.......,,..LI...I.J""""-..__..........,"-'-'-'..>.U.I....,,._ __ ~ 
4 The Petitioner received a Ph.D. in physics fro ---~--------~ in 2008. 
5 He previously worked as a senior engineer with,__ _ _____,Electronics from October 2008 until July 2015. 
6 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 determine whether his proposed endeavor meets the requirements of the 
Dhanasar analytical framework. 
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fabrication which "is critical to a multitude of industries within the United States." The record also 
includes documentation indicating that the benefit of the Petitioner's proposed research has broader 
implications, as the results are disseminated to others in the field through physics and engineering 
journals and conferences. As the Petitioner has documented both the substantial merit and national 
importance of his proposed research, we conclude 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 curriculum vitae, academic credentials, published articles, and conference 
presentations. The Petitioner also offered evidence of articles and patents that cited to his published 
work, and reference letters discussing his past research projects. 
The Petitioner contends on appeal that his academic qualifications, work experience, research articles, 
citation evidence, and technological innovations indicate that he is well positioned to advance his 
proposed endeavor. For the reasons discussed below, the evidence is insufficient to demonstrate that 
he is well positioned to advance his proposed research under Dhanasar' s second prong. 
In letters supporting the petition, several of the Petitioner's references discussed his prior research and 
work experience. 7 For example, ~------ ...... design technology I I fellow at 
I L indicated that the Petitioner devised a method while working at I I to address 
"mismatches between the design rules for a chip and the actual manufacturability of a chip that follows 
those rules." I I explained that this method "incorporates! I D feedback to optimize semiconductor layout given the initial set of design rules" and "automates 
aspects of I I that previously required substantial manual intervention from 
the user, most notably, feature segmentation and sub-resolution assisted feature placement." He 
further contended that the Petitioner's work "was instrumental in increasing the production yield of 
the ate rocess" at I I and that I J has licensed this I I 
rocess. Furthermore, noted that the Petitioner "published his findings as 'I I 
.__ ____________ __, in the proceedings of the 2011 [International Society for Optical 
Engineering] Advanced Lithography Symposium." The record includes a citation report from Google 
Scholar indicating that the aforementioned article has received two citations since its publication in 
2011. 8 
With respect to the Petitioner's raduate research atO I I, professor of physics at 
.__~ _ ___.IUniversit noted that he and the Petitioner "worked together on a theoretical 
physics project at stated that they "studied the optimal conditions for converting 
atoms o .__ ___________ __. into molecules by two different methods" and "formulated 
genetic algorithms to find the optimal sweep time for converting atoms into molecules." He further 
indicated that the Petitioner investigated "two-color I I photo association as an alternative to 
I I resonances" and found that atom and molecular counts "bifurcate in a weakly driven cavity, 
7 We discuss only a sampling of these letters, but have reviewed and considered each one. 
8 One of these citations reflects a self-citation by the Petitioner's coauthorJ I 
9 The record indicates that the Petitioner attendecLJ from September 2001 until January 2008 and that I !graduated 
fromD in 2004. .__ _ __,. 
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indicating a transition from the stable steady state to I I oscillations." The Petitioner, 
however, has not demonstrated that this theoretical physics work has been influential among physicists, 
has served as an impetus for progress or generated positive discourse in the field, or otherwise 
represents a record of success or progress rendering him well positioned to advance his proposed 
research. 
Regarding the Petitioner's graduate work towards his master's degree froml 
I I executive partner a~ k .___ _ ____. 
he "was [the Petitioner's] supervisor from 1999-2000 at _________________ _ 
I I, where we both worked as research scientists." asserted that he and the Petitioner 
developed "a new material as a replacement for the media conventionpllil...llijed in computer 
hard disk drives" and that their "use of'"=====." with the addition of anl__Jtemplate layer, 
introduces significant improvements in I I over current I !structures." He farther 
indicated that their "two co-authored articles resulting from this project, published in Journal of 
Applied Physics and IEEE Transactions on Magnetics, are [the Petitioner's] most-cited works." The 
aforementioned Google Scholar report reflects that these articles have been cited 35 and 12 times 
respectively since 2000. The Petitioner does not, however, offer comparative statistics showing the 
significance of this level of citation within his field. 
As farther evidence under Dhanasar' s second prong, the Petitioner's response to the Director's request 
for evidence (RFE) included two letters of sup2ort from scientists who indicate that they have cited to 
his graduate work involving ways to fabricate! I out ofc=] but he has not shown that this 
particular research constitutes a record of success in his proposed endeavor ofl I physics research 
or I I lithography. In addition, the reference letters initially submitted and provided 
in response to the Director's RFE do not contain sufficient information concerning the Petitioner's 
research and development activities since he commenced employment with I lin 
August 2015, and the record does not show that he has published or presented any research in his field 
after 2011, so as to demonstrate continued progress towards achieving his proposed endeavor. 
Furthermore, while the July 2017 email exchanges with managers at I I indicated that 
the Petitioner applied for two positions with this semiconductor manufacturer, these communications 
do not offer adequate information to establish whether his work with the company will involve 
research relating to his proposed endeavor. Without sufficient evidence demonstrating the means or 
financial support to undertake his proposed research in the United States, the Petitioner has not shown 
that his plan for future activities renders him well positioned to advance his endeavor. 
The record demonstrates that the Petitioner has conducted, published, and presented research during 
his graduate studies and while working forl I Electronics, but he has not shown that this work 
renders him well positioned to advance his proposed research. While we recognize that research must 
add information to the pool of knowledge in some way in order to be accepted for publication, 
presentation, fonding, or academic credit, not every individual who has performed original research 
will be found to be well positioned to advance his proposed endeavor. 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, however, has not sufficiently 
demonstrated that his published and presented work has served as an impetus for progress in the optical 
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physics field or that it has generated substantial positive discourse in the semiconductor manufacturing 
industry. Nor does the evidence otherwise show that his work constitutes~ord of success or 
progress in advancing research aimed at~-------~ lithography orl__J modeling. As the 
record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed 
research endeavor, he has not established that he satisfies 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 due to his education, research 
experience and accomplishments, and the importance of his field. 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 second prong of 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. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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