The Petitioner, a computer scientist, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions with 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).
Service Center Operations (SCOPS) denied the petition concluding the Petitioner did not establish that a waiver of the required job offer, 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 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 of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will withdraw the SCOPS decision and remand the matter for entry of a new decision.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act. An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that ofa bachelor's degree. 8 C.F.R. § 204.5(K)(2). A U.S. bachelor's degree or foreign equivalent degree followed by five years of progressive experience in the specialty is the equivalent of a master's degree. Id.
If a petitioner establishes the beneficiary's eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. Matter ofDhanasar, 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 p. 2 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.
Id.
National Interest W Aiyer
Service Center Operations (SCOPS) determined that the Petitioner qualified as a member of the professions with an advanced degree. SCOPS also concluded that the Petitioner's proposed endeavor had substantial merit under the first prong ofDhanasar and that he was well positioned to advance his proposed endeavor, consistent with the second prong of Dhanasar. The issues before us are whether the Petitioner's endeavor had national importance, pursuant to the first prong of Dhanasar, and whether it would be beneficial to waive the requirement ofthe job offer, and thus ofthe labor certification, consistent with the third prong ofDhanasar.
The Petitioner articulated the following proposed endeavor:
I intend to continue my research and investigation to improve the performance and reliability of testing massive-scale software systems. My primary objective is to pioneer new algorithms and machine learning models that selectively optimize test execution, benefiting the field broadly by influencing both industry practices and public software quality. In my future research, I will focus on developing advanced solutions, such as efficient batching algorithms and the integration of large language models for parallel software testing. This work will culminate in peer-reviewed publications and open-source contributions to ensure that the broader U.S. technological sector can benefit directly from my findings.
The Petitioner indicated that his research would also expand software testing by "generating and testing code fo_.._______________.to improve the reliability and scalability of cloud-based systems." The Petitioner explained that he would work in a research development position at a software company and that his work would address significant national challenges, including reducing significant economic losses from poor software quality. The Petitioner pointed to scholarly publications and citations to his work as evidence of its national importance in the field of computer science, software, and cloud computing technologies.
A. National Importance
The first prong relating to national importance focuses on the specific endeavor that the individual proposes to undertake. Matter ofDhanasar, 26 I&N Dec. at 889. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Id.
In determining that the Petitioner did not establish the national importance of his proposed endeavor, SCOPS concluded that the provided evidence did not demonstrate that his employment activities would have a broader impact in the field of software engineering.No broader implications shown SCOPS addressed the Petitioner's assertion that his proposed endeavor would contribute to science, engineering, mathematics, and technology (STEM), but concluded that merely working in one ofthese fields did not establish national importance.
On appeal, the Petitioner contends that SCOPS did not sufficiently consider whether hid proposed endeavor had the potential to contribute to the advancement of critical and emerging technology related to U.S. national security interests.
Upon review, SCOPS overemphasized whether the Petitioner's proposed endeavor would have substantial positive economic benefits on the U.S. economy and did not sufficiently consider whether it could have national importance based on its potential prospective national impact on critical and emerging technologies.Job creation or economic claims unsupported SCOPS only stated that the Petitioner's mere reference to STEM was not sufficient to establish eligibility and provided no analysis as to this issue. The Petitioner offered specific assertions with respect to how his research could potentially have broad implications in helping the United States remain ahead of strategic competitors or current and potential adversaries in his field and contribute to achieving or maintaining technology leadership or peer status among allies and partners. On remand, SCOPS should consider these assertions by the Petitioner and consider all evidence in light of this additional basis for eligibility with respect to national importance. See 6 USCIS Policy Manual F.5(D)(2).
B. Whether on Balance a Waiver is Beneficial
In the denial decision, SCOPS also concluded that the Petitioner did not demonstrate it would be beneficial to waive the requirement ofthe job offer, and thus ofthe labor certification, consistent with the third prong of Dhanasar.
The third prong requires a 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. Matter of Dhanasar, 26 I&N Dec. at 890-91. In performing this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from their contributions; and whether the national interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. Id. In each case, the factor(s) considered must, taken together, establish 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. Id. at 891.
On remand, SCOPS will also reconsider the third prong of Dhanasar, as necessary, based on their determination with respect to the first prong requirement of national importance, taking into account the potential prospective impact on critical and emerging STEM technologies2 and whether it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. SCOPS may request any additional evidence considered pertinent to the new determinations and any other issues. As such, we express no opinion regarding the ultimate resolution of this case on remand. ORDER: SCOPS' decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.