The Petitioner, an accountant, 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 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 asserting that the Beneficiary 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 nova review, we will dismiss the appeal.
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 p. 2 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 ofthe 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.
Section 10l(a)(32) ofthe Act provides that "[t]he term 'profession' shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition:
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Furthermore, 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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, 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 foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas 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.
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).
In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has
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 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 [T]o offer my knowledge, experience, and expertise in the fields of accounting, finance, and taxation to American companies in a wide array of industries that are seeking to streamline and improve their internal accounting and finance processes, and decrease their tax burdens and penalties. I will do this by continuing to stay up to date in my field, researching and better understanding not only the tax laws and regulations of the United States, but also the most advanced and innovative accounting and finance processes. I will then develop and implement accounting solutions and tax plans for the benefit of my served companies.
The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced degree. TheDirectoralsodeterminedthatthePetitionerhadestablishedthatherproposedendeavormet the substantial merit element of the first prong set forth in the Dhanasar analytical framework. The Director's decision then discussed the deficiencies in the submitted evidence and provided a well- reasoned explanation as to why the Petitioner did not qualify for a national interest waiver.
Therefore, upon consideration ofthe entire record, and affirm the Director's decision with the comments below. See Matter ofP. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case). to waive the requirements of a job offer and thus of a labor certification.
Analysis
According to the Petitioner, her "overall proposed endeavor" is:
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
While we may not discuss every document submitted, we have reviewed and considered each one. including the arguments made on appeal, we adopt
On appeal, regarding the national importance element ofthe first prong under the Dhanasar analysis, the Petitioner claims that the Director "erroneously conclude[d] that because [the Petitioner] intends to work for one employer that her proposed endeavor will only benefit and will be limited to said employer, but fails to address how this will not result in substantial positive impacts." The Petitioner cites to information from the International Federation ofAccountants (IFAC) indicating that accountants are "an 'invaluable asset' to a business" and that "[t]hese professionals help companies reduce costs, improve their top line and mitigate risks" (emphasis in original). IFAC also states that "professional management of public assets co[u]ld, across advanced economies, generate annually more revenues than governments receive in corporate tax collections" and that "accounting is essential for the public sector." The Petitioner also asserts that "her proposed endeavor includes the sharing of knowledge, thereby teaching junior accountants and expanding the benefits beyond the appellant's immediate reach" and that she will be "one less expert needed to help non-accounting professionals navigate this complex system."
While the Petitioner has established the substantial merit of her proposed endeavor, she has not, however, offered sufficient information and evidence to demonstrate that its prospective impact rises to the level of national importance. For example, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Similarly, in this matter, the record does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond her employer, its clients and those with whom she may share her knowledge to impact the U.S. economy or accounting industry more broadly at a level commensurate with national importance.No broader implications shown
Here, the Petitioner has not demonstrated that the specific endeavor she proposes to undertake has significant potential to employ U.S . workers or otherwise offers substantial positive economic effects for our nation.Job creation or economic claims unsupported Without sufficient documentation to support her claims regarding any projected U.S. economic impact attributable to her future work, the record does not establish that benefits to the U.S. regional or national economy resulting from the Petitioner's accounting activities would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed work does not meet the first prong of the Dhanasar framework.
Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the remaining issues. 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 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
Conclusion
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude that she has not established she 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.
ORDER: The appeal is dismissed.