The Petitioner, an executive and business owner, seeks employment-based second preference (EB-2) 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 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 did not establish that he was eligible for the requested classification or that a waiver of the classification's job offer requirement, and thus of the labor certification, would be in the national interest. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015).
Upon de novo review, we will dismiss the appeal because the Petitioner did not establish that his proposed endeavor has national importance and thus, he did not meet the national importance requirement of the first prong of the Dhanasar framework. See Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Because this identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding the remaining Dhanasar prong. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-
, 26 l&N Dec. 516, 526 n.7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
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. Section 203(b )(2)(B)(i) of the Act. An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree p. 2 followed by five years ofprogressive experience in the specialty is the equivalent ofa master's degree. 8 C.F.R. § 204.5(k)(2).
Profession is defined as of the occupations listed in section 101 ( a )(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(3).
Once eligibility for the EB-2 visa classification is established, a petitioner must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest."
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates that:
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Analysis
The Petitioner states that he has more than 20 years "of diverse experience in the fields of financial and business management." His proposed endeavor is "to establish and direct the operations of his own New Jersey-based business, which will be dedicated to manufacturing and distributing functional beverages to customers throughout the United States, thereby helping the U.S. decrease obesity levels among its population and helping individuals increase the quality of their health."
With the initial filing the Petitioner submitted evidence of his education and experience, a personal statement describing his proposed endeavor and claimed eligibility for a national interest waiver, and a business plan. He also submitted recommendation and support letters, and industry reports and articles discussing entrepreneurship, business innovation and sustainability, and the beverage industry in the United States.
Following initial review, the Director issued a request for evidence (RFE), allowing the Petitioner an opportunity to submit additional evidence in attempt to establish his eligibility for the requested classification and for the national interest waiver. The Petitioner's response to the RFE includes an evaluation of his educational credentials, and additional recommendation and support letters. After reviewing the Petitioner's RFE response, the Director determined that the Petitioner did not establish that he was eligible for the requested EB-2 classification, as the record did not demonstrate that the position of executive and business owner was a professional position. She further determined that the Petitioner had submitted sufficient evidence to demonstrate that his proposed endeavor has 1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). p. 3 substantial merit. However, she concluded that the Petitioner had not demonstrated that his proposed endeavor had national importance, that he is well-positioned to advance his proposed endeavor, or that, on balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus of the labor certification.Did not show the waiver outweighs labor certification The Director determined that the record did not demonstrate that the Petitioner's proposed endeavor would produce benefits rising to the level of national importance, trigger substantial positive economic impacts, or impact the industry more broadly.Job creation or economic claims unsupported Additionally, the Director determined that the Petitioner did not demonstrate national interest factors such as the benefit of his prospective contributions to the United States, an urgent national interest in his contributions, or the potential creation ofjobs.No interest from users, customers or investors
On appeal, the Petitioner submits a brief and asserts that the Director erred in concluding that the Petitioner's position of executive and business owner is not a professional position. He further asserts that the Director "failed to give due weight to the evidence submitted in the original petition and the RFE response" and erred in concluding that he was not eligible for a national interest waiver. In his brief on appeal, the Petitioner references evidence already in the record and states that this evidence demonstrates by a preponderance of the evidence that he meets the EB-2 classification and merits a national interest waiver.
A. Member of the Professions Holding an Advanced Degree
The Petitioner asserts that he qualifies for advanced degree professional classification by virtue of a foreign education equivalent to a U.S. baccalaureate degree and more than five years of postbaccalaureate experience in the specialty, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). He does not make any claim to qualify as an individual with exceptional ability.
The Director determined that the Petitioner did not submit evidence to establish that his occupation of executive and business owner requires "a United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate."Degree not shown to be a U.S. advanced degree equivalent As noted above, to qualify as a member of the professions, an individual must meet "one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation."2 8 C.F.R. 204.5(k)(2). The Director incorrectly required evidence that the Petitioner's occupation required above that ofa baccalaureate. Therefore, this portion of the Director's decision is withdrawn. However, for the reasons discussed below, we cannot conclusively determine that the Petitioner has established his eligibility for advanced degree professional classification.
As noted above, a petition for an advanced degree professional must include evidence that a petitioner possesses a "United States academic or professional degree or a foreign equivalent degree above that of baccalaureate [or] A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree." 8 C.F.R. § 204.5(k)(2). In addition, a petitioner must meet all of the eligibility requirements of the petition at the time of filing. 8 C.F.R. § 103.2(b)(l), (12).
I
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied by "[a]n official academic record showing that the [individual] has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n official academic record showing that the [individual] has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the [individual] has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B).
The record includes a diploma, titled Di lom and academic transcri • ears of stud issued to the Petitioner by the
I The Petitioner also submitted a credential evaluation report from Scholaro, Inc., stating that he has a foreign equivalent of a U.S. bachelor's degree in English language, awarded in July 2000. The report states that the admission requirements for the Petitioner's "Diploma Specialist program in English Language" were "completion of secondary education (11 years)."
We have reviewed the Electronic Database for Global Education (EDGE), which is a web-based resource for the evaluation of foreign educational credentials created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). 3 USCIS considers EDGE to be a reliable source of information about foreign credentials equivalencies. According to EDGE, the Diplom Bakalavr is issued following four years of post-secondary university study and represents attainment of a level of education comparable to a bachelor's degree in the United States. The entrance requirement for a Diplom Bakalavr is completion of basic secondary education "and a university entrance examination."
EDGE further states that a Diplom Spetsialista or Specialist's Degree is usually awarded after five to six years of study ( or in one year following a diplom bakalavr) and represents attainment of a level of education comparable to a master's degree in the United States.4 The entrance requirement for a Diplom Spetsialista is a diplom bakalavr, or completion ofbasic secondary education and a university entrance examination.
The credential evaluation report from Scholaro, Inc. is inconsistent with the credential descriptions in EDGE. Neither the Petitioner's academic record nor the evaluation identifies the Petitioner's credential as a Diplom Bakalavr or a Diplom Spetsialista. Although the evaluation identifies the Petitioner's academic record as a "Diploma of Specialist" equivalent to a U.S. bachelor's degree, this is inconsistent with the information in EDGE that a Specialist's Degree requires five to six years of study and is equivalent to a U.S. master's degree.Inconsistencies in the record The record also does not include evidence that the Petitioner met the entrance requirements for either the Diplom Bakalavr or the Diplom Spetsialista, such as evidence of completion of basic secondary education or passage of a university entrance examination.
As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. at 795. However, we may give an opinion less weight if it is not in accord with other information in the record or if it is in any way questionable. Id. We are ultimately responsible for making the final determination regarding an individual's eligibility for the benefit sought. The submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist the trier of fact to understand the evidence of to determine a fact in issue."'). Given the academic evaluation's inconsistent information regarding the title and equivalency of the academic record, the evaluation is of minimal probative value.
Because we cannot conclude that the Petitioner possesses a foreign education equivalent to a U.S. baccalaureate degree, in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B), we cannot conclude that the Petitioner qualifies for the requested EB-2 classification.
Additionally, as required by 8 C.F.R. § 204.5(k)(3)(i)(B), the Petitioner must document his postbaccalaureate experience "in the form of letters from current or former employer(s) showing that the [individual] has at least five years ofprogressive post-baccalaureate experience in the specialty." The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b )(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971).Not eligible at the time of filing
The record includes the Petitioner's employment book listing his employment in various positions from 1995 to 2000. Even ifwe accept that the Petitioner's Diplom is equivalent to a U.S. baccalaureate degree, which we do not, the employment book lists only employment that pre-dates the Diplom issued in July 2000.
The record also includes recommendation and support letters from the Petitioner's former employers, colleagues, and business partners. However, none of these letters states the dates of the Petitioner's employment. Therefore, we are precluded from determining that the Petitioner possesses five years of foll-time post-baccalaureate experience as required by 8 C.F.R. § 204.5(k)(3)(i)(B).
In light of the above, we disagree with the Petitioner's assertion that he has established that he is an advanced degree professional in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). However, because the Petitioner was not on notice of these issues, this does not form the basis of our dismissal. The Petitioner must address and resolve the inconsistencies in his academic records and the academic evaluation, as well as present evidence of his five years of post-baccalaureate experience, in any further filings.
A. Substantial Merit and National Importance
The Director determined that while the Petitioner established that the proposed endeavor has substantial merit, he did not establish that the proposed endeavor is of national importance as set forth under the first prong ofthe analytical framework ofMatter ofDhanasar, 26 I&N Dec. 884. We agree, for the reasons explained below.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual 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. Matter ofDhanasar, 26 I&N Dec. at 889.
The relevant question is not the importance ofthe field, industry, or profession in which the individual will work; instead we focus on the "the specific endeavor that the foreign national proposes to undertake." See Id. In Dhanasar, we further noted that "we look for broader implications" of the proposed endeavor and that "[a a ]n undertaking may have national importance for example, because it has national or even global implications within a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance." Id. at 890.
As noted above, the Petitioner states that his proposed endeavor is to establish a company to manufacture and distribute its own beverage, as well as "other non-alcoholic beverages produced by other manufacturers." He states that his company's product will include B vitamins, caffeine, anxietyand insomnia-reducing amino acid, a weight loss supplement, and natural ingredients to "increase energy, stamina, strength, and mental capacity, as well as help the body to resist the effects of stress and manage depression and anxiety."
The Petitioner submits his personal statement in attempt to support the national importance of his proposed endeavor. The Petitioner's personal statement discusses his experience, initially as an interpreter, and later in business management. His business experience includes sales, marketing, manufacturing, procurement and financial management. He also describes the benefits of entrepreneurship, the importance of sustainability, and trends in the beverage industry in the United States. This statement does not describe his proposed endeavor and, as the Director noted in the RFE, was not sufficient to demonstrate that his proposed endeavor has national importance. "In determining national importance, the officer's analysis should/ocus on what the beneficiary will be doing rather than the specific occupational classification." 6 USCIS Policy Manual F.5(D)(l ), https://www.uscis.gov/policy-manual (emphasis added).
The Petitioner also submits his business plan. The Petitioner asserts that his proposed endeavor will "help American citizens improve their diets," as well as support the U.S. economy and create jobs. The Petitioner's business plan states that, within five years, the company will hire 23 employees, have a net profit of $838,083, and incur taxes of $359,179. The Petitioner's generalized projections are not specific and detailed enough to establish the potential prospective impact of his proposed endeavor.Proposed endeavor too vague Nor are they supported by independent, objective evidence.
The business plan states that the Petitioner's company "will offer unique products that differ from both traditional drinks and fortified water, with its beverages containing supplements that serve to boost energy levels and improve metabolism and cognitive functioning." Although the Petitioner states that his company will develop and manufacture its own beverage, the business plan does not provide sufficient information about this key aspect ofthe proposed endeavor. The Petitioner does not describe how the product will be developed. He does not provide information about how and from where p. 7 ingredients will be sourced, the manufacturing process or location, or how the product will be safety tested. Nor does he indicate who will be responsible for the product development. The business plan includes a list of the company's projected personnel and job duties, including the Petitioner as managing director, an accountant, sales representatives, and production workers. However, none of the job duties for these positions involve development of the beverage.
The Petitioner submits articles and industry reports describing the importance of entrepreneurship, environmental sustainability, and the U.S. beverage industry. 5 An article titled "Why Sustainability is Important in Business" from Earth.org discusses consumer trends toward ecologically friendly products and packaging. However, the article does not discuss the beverage industry or the Petitioner's specific proposed endeavor. Similarly, an article titled "Would taxes on unhealthy foods reduce obesity?" from Economics Observatory discusses the impact of imposing taxes on soft drinks in the United Kingdom but does not address the Petitioner's specific proposed endeavor.
Additional industry reports in the record tend to support that demand for a healthy beverage option may exist in the United States, but these reports do not specifically discuss the Petitioner's proposed endeavor. As noted above, the Director determined the endeavor has substantial merit, and we agree. However, the question we are examining here is national importance. When determining national importance, the relevant question is not the importance of the industry or profession in which the individual will work; instead, we focus on the "the specific endeavor that the foreign national proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 889. Much ofthe Petitioner's evidence relates to the beverage industry generally, rather than his specific proposed endeavor. Although we agree that health and nutrition are important and may be the subject of national initiatives, we conclude that this does not necessarily establish the national importance of the Petitioner's specific proposed endeavor. Even considering the articles and reports, collectively and in the totality of circumstances, the record contains insufficient information or evidence regarding the Petitioner's proposed endeavor to show broad potential implications demonstrating national importance.
The Petitioner also submits recommendation letters from former colleagues. We note that the letters describe the Petitioner's achievements as having benefitted his employers or being key to the company, rather than describing achievements that had broad implications to the field of business management or food and beverage. The letters do not describe skills that differ from or improve upon those already available and in use in the United States. Although the letters praise his qualifications and professional accomplishments, the Petitioner's skills, expertise, and abilities relate to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor he proposes to undertake has national importance under Dhanasar 's first prong.
The Petitioner claims that the denial is deficient because the Director did not give due weight to the evidence in the record, specifically the business plan.Plan or projections not corroborated While we agree that an adjudicator should consider the relevant evidence in the record, the Petitioner does not sufficiently support his claim that there was relevant evidence that the Director did not consider. We note that the decision does discuss the business plan. Nevertheless, we address it again herein.
The Petitioner continues to rely upon the asserted merits of the services he will provide, his personal and professional qualities and achievements, and the general demand for healthy and nutritional beverages. However, as set forth above, the evidence does not sufficiently demonstrate the proposed endeavor's national importance. Therefore, we conclude that the Petitioner has not met the requisite first prong of the Dhanasar framework.
As the Petitioner has not established the national importance of his proposed endeavor as required by the first prong of the Dhanasar framework, he is not eligible for a national interest waiver and further discussion of the balancing factors under the second and third prongs would serve no meaningful purpose. As noted above, we reserve the Petitioner's appellate arguments regarding the remaining Dhanasar prong. 6 See INSv. Bagamasbad, 429 U.S. at 25.
Conclusion
As the Petitioner has not met all of the requisite three prongs set forth in the Dhanasar analytical framework, we conclude that he has not established he is eligible for or otherwise merits a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.