The Petitioner seeks second preference immigrant classification as a member of the professions holding an advanced degree and as an individual of exceptional ability, 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 he qualifies as an individual of exceptional ability and that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest.
On appeal, the Petitioner asserts that he is eligible as member of the professions holding an advanced degree and as an individual of exceptional ability, as well as 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 withdraw the Director's decision and remand the matter for further review of the record and issuance of a new decision.
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. - p. 2 (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 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) Nationalinterestwaiver. ... [T]he Attorney Generalmay, 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 101 (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 definitions:
Advanced degree means any United States academic or professional degree or a foreign equivalentdegreeabovethatofbaccalaureate. AUnitedStatesbaccalaureatedegree or a foreign equivalent degree followed by at least five years ofprogressive 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.
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Profession means one ofthe occupations listed in section 10l(a)(32) ofthe Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the occupation.
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form ofletters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty."
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner must submit documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii).
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 o f 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 , 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.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming 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 ajob 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 wanant 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 As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating qualification for the underlying EB-2 visa classification, as either an advanced degree professional or anindividualofexceptionalability. Atinitialfiling,thePetitionerindicatedinhiscoverletterthathe "is filing for EB2 classification based upon his advanced degree in Business Administration and exceptional abilities in the field of sales," andhis "endeavor in the U.S. is to work fora top IT company Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). deny a nationalinterestwaiverto be discretionaiy in nature). to waive the requirements of a job offer and thus of a labor certification.
Analysis
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. p. 4 as a Sales Manager/ Customer Experience Representative performing B2B sales and support services for his prospective employer." The Petitioner also discussed and submitted documentation relating to his claims of eligibility relating to an advanced degree professional and an individual of exceptional ability. TheDirector'sdecision,however,doesnotreflectthathemadeadeterminationwhetherthe Petitioner qualified as an advanced degree professional. Instead, the Director only addressed his eligibility as it pe1iained to an individual ofexceptional ability in the sciences, arts, or business.
A. Member of the Professions Holding an Advanced Degree
In order to qualify as a member of the professions, an individual must meet "one 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 The Director's decision does not determine whether the Petitioner's occupation, '·Sales Manager / Customer Experience Representative," qualifies as a member of the professions. In addition, the Director does not conclude whether the Petitioner's "Lato Sensu Graduate Course -MBA in Business Management" from the and the . _ _ - - ~ - - - - ~ - - - - - - - - - ~ - - - - - - ' is a foreign equivalent degree above that ofbaccalaureatedegree. Further,theDirectordidnotdecidewhetherthePetitioner's"HigherEducation Course of Technology in Data Processing" and title of '·Technologist in Data Processing" from I !University, School of Technology meets the foreign equivalent of a baccalaureate degree followed by at least five years ofprogressive experience in the specialty.
We note that the Petitioner provided a "Credential Evaluation Report" from I.._.. _,,~..---------! ~-----~I who claimed that the Petitioner's "MBA in Business Management" is equivalent to a Database for Global Education (EDGE) , however, "[p]rofessional development and specialization programs are considered lato sensus (wide sense graduate-level programs) and follow independent legislation. Such programs lead toward professional certificates, not graduate degrees." It also states Section I01(a)(32)oftheActstates"[t]heterm'profession'shallincludebutnotlimitedtoarchitects,engineers,la\3⁄4yers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
We may, in our discretion, useanevaluationofa person's foreign education as anadvisoryopinion. J1atterofSea, Inc., 19 I&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other information oris in any way questionable, we may discount or give less weight to that evaluation. Id.
We consider EDGE to be a reliable source ofinformation about foreign credentialequivalencies. See Confluence Intem., Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, No. 09-cv-l 0072, 20 lOWL 3464314(E.D. Mich. Aug. 30, 20lO);SunshineRehabServices, Inc. No. 09-13605, 2010WL 3325442(E.D. Mich.Aug. 20,2010).Sccalso Viraj, LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. Ga.May 18,2013).
Further, in order to show an individual holds an advanced degree, occupation." 8 C.F.R. 204.5(k)(2). thepetitionmustbe accompaniedby"[a]nofficialacademicrecordshowingthatthealienhasaUnited States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present"[a]n official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or fmmer employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B).
"Master in Business Administration in Business Management" in the United States. the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic According to p. 5 that"[c]redits earned in lato sensu graduate programs may later be transferred into a master's degree Although the evaluator claims to be a member of AACRAO, he fails to address the discrepancies between EDGE's conclusions and his own in his evaluation. The Petitioner must resolve the above inconsistencies with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter o fHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. Id.
We further note that the record does not contain a credential evaluation regarding whether the Petitioner's "Technologist in Data Processing" meets the foreign equivalency of a baccalaureate degree. According to AACRAO, the title of technologist is "awarded following 2 to 3 years of university study, depending on entrance qualifications and the field of study" and "represents attainment o f a level o f education comparable to 2 to 3 years o f university study in the United States," Inlight oftheabove,theDirectorshouldfirstdeterminewhetherthePetitioner'soccupationasa"Sales Manager / Customer Experience Representative" is a member of the professions. If so, the Director should consider whether the Petitioner's "Lato Sensu Graduate Course - MBA in Business Management" qualifies as the foreign equivalent above that of a baccalaureate degree. If not, the Director should then decide whether the Petitioner's "Technologist in Data Processing" meets the f o r e i g n e q u i v a l e n t o f a b a c c a l a u r e a t e d e g r e e f o l l o w e d b y a t l e a s t f i v e y e a r s o f p r o g r e s s i v e e x p e r i e n c e in thespecialty. IftheDirectorconcludesthatthePetitionerisnotanadvanceddegreeprofessionaLhe should then determine whether the Petitioner qualifies as an individual of exceptional ability, discussed below.
B. Exceptional Ability
The Petitioner asserted eligibility and submitted documentation for five o f the regulatory criteria under On remand, the Director should review the Petitioner's arguments made on appeal and decide whether anyadditionalcriteriahavebeenmet. Ifso,theDirectorshouldthenconductafinalmeritsdetermination to conclude whether the Petitioner has achieved the level of expertise significantly above that ordinarily encountered for exceptional ability classification.Degree not shown to be a U.S. advanced degree equivalent
Seehttps://www.aactao.org/edge/country/brazil for information regarding the education system in Brazil and credential equivalencies (last accessed August 12, 2021 ). program given that institutional requirements are met and institutional approval is granted." appearing to indicate that it is not a foreign equivalent of baccalaureate degree.
C. National Interest Waiver
The Director did determine that, although the Petitioner did not meet the first and third prongs of Dhanasar, he had met the second prong. However, as the Director's determination appears to be based, at least in part, on the Petitioner's education, we must also withdraw the Director's conclusion thatthePetitioneriswellpositionedtoadvancetheproposedendeavor. Inaddition,theDirectordid not sufficiently conduct an analysis of the third prong. Instead, the Director stated that since the Petitioner had not met the first prong, "further discussion of the balancing factors under this prong will serve no meaningful purpose."
The Director should conduct a proper Dhanasar analysis under all three prongs, including the arguments made on appeal.
Conclusion
To meet the requirements for a national interest waiver, an individual must first qualify for the underlying EB-2 visa classification. We are therefore remanding the petition for the Director to considerwhetherthe Petitioner has satisfied the eligibility requirements for classification as a member oftheprofessionsholdinganadvanceddegreeorasanindividualofexceptionalability. Inaddition, the Director should properly apply all three prongs of the Dhanasar analytical framework to make a determination as to 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. As such, we will remand the matter for further consideration of the record, including claims on appeal, and entry of a new ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision which, if adverse, shall be certified to us for review.