United States Department of Homeland Security
Citizenship & Immigration Services
RE: RESPONSE TO USCIS’S REQUEST FOR EVIDENCE
Dear Immigration Service Representative
This letter is written in response to USCIS’s Request for Evidence dated
December 27, 2021.
The petition filed seeks to classify the petitioner as an employment-based
immigrant in accordance with Section 203(b)(2) of the Immigration and
Nationality Act (INA). Petitioner also seeks a National Interest Waiver of the
job offer requirement.
In order to establish eligibility, the petition must establish that:
The petitioner qualifies for the requested classification; and
An exemption from the requirement of a job offer, and thus of a labor
certification, is in the national interest of the United States
a) The petitioner qualifies for the requested classification;
USCIS have stated that the petitioner has already submitted sufficient
evidence to establish this criterion by way of his Doctor of Philosophy Degree
in Semiconductor and Communication Engineering conferred on February
25, 2020 by Korea University, South Korea.
Therefore, this criterion has already been met.
b) An exemption from the requirement of a job offer, and thus of a
labor certification, is in the national interest of the United States
In order to qualify for the National Interest Waiver, USCIS is guided by
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) (“Dhanasar”) as a
precedent decision.
Dhanasar introduced a new three-pong test to determine eligibility of
this criteria. Pursuant to Dhanasar, USCIS may grant a national
interest waiver if the petitioner demonstrates by way of evidence that:
1. Petitioner’s proposed endeavour has both substantial merit and
national importance;
2. Petitioner is well positioned to advance the proposed endeavour;
and
3. On balance, it would be beneficial to the United States to waive
the requirements of a job offer and thus of a labor certification.
Petitioner submits that he has, by way of preponderance of evidence already
submitted, demonstrated that he has met the criteria required to qualify for
the National Interest Waiver of the job offer requirement. We shall discuss in
detail how each of the three-pong tests have already been satisfied by the
petitioner:
i. Petitioner’s proposed endeavour has both substantial merit and
national importance
USCIS stated that the petitioner has already provided sufficient evidence to
establish that his proposed endeavour has substantial merit however, the
evidence is insufficient to establish that the proposed endeavour has
national importance. To the contrary, petitioner submits that he has
demonstrated by a preponderance of the evidence that the proposed
endeavour has national importance. I shall therefore proceed to demonstrate
that the petitioner has provided a preponderance of evidence to demonstrate
that his proposed endeavour has both substantial merit and is of national
importance.
Petitioner submits that his proposed endeavour, being, to work as an
electronics engineer for II-VI Incorporated, USA is not only beneficial to his
employer, but it shall also benefit the field generally in the USA hence, it has
national importance.
Petitioner’s proposed endeavour is in the field of both a critical and emerging
technology. This field is important to the USA and can greatly assist the USA
in being competitive. It is well known and appreciated that some of the
global challenges being faced relate to technology and as such, the
petitioner’s proposed endeavour is very timely and contemporary.
The petitioner has demonstrated by way of his resume that he has 30-years’
experience in the field of optoelectronic technology and mobile device
applications. This has been achieved by working for prestigious
organizations such as Samsung Electronics, II-VI Incorporated and ETRI in
South Korea. He has in-depth expertise in engineering with extensive
experience in the area of 3D (depth sensing, H/W, S/W), Virtual/Augmented
Reality, Pico-projectors and LDs for communications.
When determining whether or not a proposed endeavour has met the
threshold for national importance, typical factors evaluated include whether
the petitioner has demonstrated that his presence in the United States
would substantially benefit the national economy, cultural or educational
interests, or welfare of the United States in the future. In doing so, the
petitioner is required to demonstrate that the proposed endeavour has
national or global implications within a particular field, has significant
potential to employ U.S. workers or has other substantial positive economic
effects. Petitioner has complied with this requirement and duly
demonstrated the same by way of evidence.
To begin with, the petitioner has provided details as to the general
occupation he is in as well as the specifics of the type of work that he
intends to undertake within that occupation. This evidence is contained in
petitioner’s resume and personal statement. Petitioner has provided
evidence that the general occupation he is in relates to electronics
engineering. He has gone further and specified the specific projects and
goals as well as the areas of engineering that he will work in. This is in line
with the Policy Manual1 published by USCIS which requires a petitioner to
expound on his proposed endeavour by not only stating the general
occupation but also the specifics of the work he intends to undertake. 2
Petitioner has demonstrated this by stating that he is an electronics
engineer by occupation and further provided the specifics of the works he
intends to undertake, being 3D depth technologies and mobile devices,
virtual/augmented reality, pico-projector, just to mention a few.
As mentioned above, we shall not dwell on merit because USCIS has already
determined that the petitioner’s proposed endeavour has substantial merit.
In examining the national importance of the proposed specific endeavour,
USCIS considers its potential prospective impact. Matter of Dhanasar3,
determined that officers ought to focus on the nature of the proposed
endeavour, rather than only the geographic breadth of the endeavour.
The petitioner has demonstrated that his endeavour has national
importance because it has national and global implications within the field
of electronics engineering, such as optoelectronics and mobile device
development. His endeavour has the potential to help address the world’s
ever-increasing demand for high quality, technologically innovative
smartphone devices and in doing so, it would enable USA maintain an
economic advantage as well as to stay globally competitive.
Additionally, the petitioner’s endeavour has an economic impact since it has
significant potential to employ U.S. workers as well as other substantial
positive economic effects, particularly in an economically depressed area.
Indeed, the petitioner’s endeavour will also have substantive economic
benefits. The mobile device market contributes significantly to the American
economy and therefore, the petitioner’s proposed endeavour will advance
that market and the rest of the Electronics Engineering field, which is a
matter of clear economic importance.
1
Chapter 5 - Advanced Degree or Exceptional Ability | USCIS.
2
See Matter of Dhanasar, 26 I&N Dec. 884, 891 (AAO 2016) where although the petitioner
was an engineer by occupation, the decision discussed his specific proposed endeavours “to
engage in research and development relating to air and space propulsion systems, as well
as to teach aerospace engineering.”
3
26 I&N Dec. 884, 891 (AAO 2016).
Further, by continuing to improve the functionality and accessibility of
smartphones and other mobile devices, the petitioner’s proposed endeavour
will also contribute heavily to the communal welfare of the American people.
Majority of mobile device users believe mobile phones contribute positively
to their overall quality of life which has significantly improved their access to
information on the Internet, making it easier to communicate with family
and friends, and facilitating the creation and transmission of information
between communities.
The world has become increasingly united through and reliant on the
Internet, smartphones are becoming a reliable tool with which to access the
Internet. Research indicates that the underprivileged (such as the
unemployed, women, and people living in remote or rural areas) derive
significant educational, employment, and health benefits from their access
to the Internet.4 This demonstrates that continuing to improve access to
smartphones and other mobile devices capable of accessing the Internet to
be a matter of significant social benefit. The petitioner has therefore
demonstrated that his proposed endeavour will have obvious positive
consequences for the overall welfare of the American people. This adheres to
the parameters that have been set in the Matter of Dhanasar.
Petitioners has submitted a detailed description explaining the proposed
endeavour and provided supporting documentary evidence to establish that
the endeavour is of national importance. The petitioner has described the
specifics of what he will be doing which is evident in his personal statement
and resume, which gives rise to the level of having national importance for
the purpose of establishing eligibility for a national interest waiver.
It has been stated in Matter of Dhanasar that if the evidence of record
demonstrates that the person’s proposed endeavour has the significant
potential to broadly enhance societal welfare or cultural or artistic
enrichment, or to contribute to the advancement of a valuable technology or
field of study, it may rise to the level of national importance.
4
Global study stresses importance of public Internet access | UW News (washington.edu) .
Petitioner has demonstrated that his role as electronics engineer at II-VI
Incorporated, USA has a commensurate level of impact on the company’s
national or international operations.
Petitioner has also demonstrated that his proposed endeavour has
implications beyond II-VI Incorporated, USA and its business partners at a
level sufficient to demonstrate the national importance of his proposed
endeavour. This is well provided for in his personal statement and resume.
Petitioner has also demonstrated that his proposed endeavour is directly
related to a number of ongoing government programs and initiatives, which
speaks to the national importance of his work in the United States.
The federal government has long supported the development of innovative
smartphone technologies, from the modernization of microchips and the
proliferation of semiconductor devices to the implementation of touch
screens and artificial intelligences.
Currently, the National Institute of Standards and Technology, a federal
agency and physical science laboratory responsible for promoting “U.S.
innovation and industrial competitiveness by advancing measurement
science, standards, and technology,” promotes innovative research projects
and advancements related to optoelectronics and mobile technologies.
Additionally, the federal government clearly recognized the significant social
benefits of access to phone technologies, as it founded the Lifeline program
in 1985 to ensure that low-income consumers are able to afford phone
services and “connect to jobs, family and emergency services.” The petitioner
has therefore demonstrated that his proposed endeavours are directly linked
to these ongoing programs and initiatives, which further cements my
estimation of the national importance of his presence in the United States.
ii. The Person is Well Positioned to Advance the Proposed Endeavor
This second prong centers on the person. Specifically, the petitioner is
required to demonstrate that he is well positioned to advance the endeavour.
In evaluating whether the person is well positioned to advance the
endeavour, USCIS considers factors including, but not limited to:
The person’s education, skills, knowledge, and record of success in
related or similar efforts;
A model or plan that the person developed, or played a significant
role in developing, for future activities related to the proposed
endeavour;
Any progress towards achieving the proposed endeavour; and
The interest or support garnered by the person from potential
customers, users, investors, or other relevant entities or persons.
The petitioner has submitted evidence to document his past achievements
and corroborated projections related to the proposed endeavour to show that
he is well-positioned to advance the endeavour. In doing so, petitioner has
submitted the following evidence:
Degrees, certificates, and transcripts in the field;
Copies of awards and scholarships;
Patents developed by the petitioner;
Letters from experts in the person’s field, describing petitioner’s
past achievements and providing specific examples of how the
petitioner is well positioned to advance his proposed endeavour;
Published articles in the field;
Petitioner further submits that he has established that he has a record of
success in his endeavour that will support projections of future work in his
endeavour. In doing so, he has submitted nine reference letters and an
expert letter by Chad Stillinger which clearly demonstrates this element.
Further, the expert letter by Chad Stillinger, who is an independent expert,
confirms that petitioner’s proposed endeavour has a substantial impact on
the field of engineering. Prof. Stillinger indeed confirms that the petitioner is
well positioned to advance the entire Electronics Engineering industry by
developing and implementing innovative new technologies.
As such, petitioner has submitted preponderance of evidence establishing
that he is well positioned to advance the proposed endeavour.
iii. On balance, it would be beneficial to the United States to waive
the job offer and thus the permanent labor certification
requirements
This last prong requires the petitioner to demonstrate that the factors in
favour of granting the waiver outweigh those that support the requirement of
a job offer and thus a labor certification, which is intended to ensure that
the admission of foreign workers will not adversely affect the job
opportunities, wages, and working conditions of U.S. workers. 5
Petitioner is required to demonstrate whether his endeavour and being well-
positioned to advance that endeavour, taken together, provide benefits to the
nation such that a waiver of the labor certification requirement outweighs
the benefits that ordinarily flow from that requirement.
In establishing eligibility for the third prong, petitioner submitted the
following evidence:
Supporting letters demonstrating that the national interest in his
contributions is sufficiently urgent, such as U.S. competitiveness in
STEM fields.
An expert opinion demonstrating that his endeavour has the potential
to generate considerable revenue consistent with economic
revitalization.
Self-petitioner’s letter demonstrating that the labor certification
process may prevent an employer from hiring a person with unique
knowledge or skills exceeding the minimum requirements standard for
that occupation, which cannot be appropriately captured by the labor
certification.
5
See 20 CFR 656.1. See Part E, Employment-Based Immigration, Chapter 6, Permanent
Labor Certification, Section A, Employer Requirements, Subsection 2, Individual Permanent
Labor Certifications [6 USCIS-PM E.6(A)(2)].
An expert opinion demonstrating that the person’s endeavour may
lead to potential job creation.
Conclusion
Petitioner humbly submits that he has, by way of a preponderance of
evidence, met the criteria by satisfying the three-pong test and as such, he
has demonstrated that he is eligible to the National Interest Waiver.
