The Petitioner, an entrepreneur in the wall paper industry, seeks second preference immigrant classification as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2).
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner qualified as an advanced degree professional, he did not establish that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 1 The matter is now before us on appeal pursuant to 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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 of a bachelor's degree. 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.
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act.
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they 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,4 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.
Analysis
A. EB-2 Visa Classification
As indicated above, the 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. The Director determined that the Petitioner is a member ofthe professions holding an advanced degree. However, upon de novo review, we disagree.
The Petitioner provided a copy of his diploma for the Titulo de Tecn6logo in management of small and medium sized entreprises and transcripts from indicating that he began his studies in 2003 and completed them in 2006, a period of three years. According to the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE) entry for the Titulo de Tecn6logo, it is awarded following two to three years of undergraduate study. 5 However, a bachelor's degree is generally found to require four years of 2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii).
education. Matter ofShah, 17 I&N Dec. 244 (Comm'r 1977). There is no provision in the statute or the regulations that would allow a petitioner to qualify under section 203(b )(2) ofthe Act as a member ofthe professions holding an advanced degree with anything less than a full baccalaureate degree (plus five years of progressive experience in the specialty).
While we acknowledge the submission of a credential evaluation, the evaluation is based on the Petitioner's three-year coursework at and his over 28 years of experience. Thus, this evaluation is not in accord with the relevant regulation. The regulation at 8 C.F.R. § 204.5(k)(2) refers to "degree" in the singular, indicating that an advanced degree equivalency requires a degree that is either a single U.S. bachelor's degree or a single foreign equivalent of a U.S. bachelor's degree, without combining educational credentials or combining education with experience. As the plain language of the regulation demonstrates that an advanced degree equivalency requires a single degree, rather than a combination of experiences or lesser education credentials, we will not grant any evidentiary weight to the evaluation presented on record. Matter of Caron Int 'l, Inc., 19 I&N Dec. 791, 795 (stating that we may give less weight to or decline to accept an expert opinion that is not in accord with other information or is in any way questionable). As such, the Petitioner has not established by a preponderance of the evidence that he is a member of the professions holding an advanced degree and we withdraw the Director's determination on this issue.
In addition, while the Petitioner initially claimed he qualifies for EB-2 classification as an individual of exceptional ability, the Director did not address this issue. Since the evidence in the record does not establish by a preponderance of the evidence that the Petitioner is eligible for, or otherwise merits, a national interest waiver as a matter of discretion, we will reserve the issue of whether he qualifies for EB-2 classification as an individual of exceptional ability for future consideration should the need arise. 6
B. National Interest Waiver
A petitioner must identify the specific endeavor they propose to undertake. Dhanasar at 889. On Part 6 ofthe petition, the Petitioner indicated that his proposed employment is chief executive/ entrepreneur and his support letter stated that his "proposed endeavor is to advance U.S. business, technology, and entrepreneurialism through his wallpaper company." However, later in the same letter, the Petitioner stated that his "proposed endeavor to work as a CEO / Entrepreneur has substantial merit, because it will advance U.S. business, technology, and entrepreneurialism through his transportation company." (Emphasis added). The Petitioner also submitted a business plan for a wallpaper company as well as a Professional Plan and Statement (PPS), but the PPS stated: "Please accept this enclosed statement and professional plan as part of my petition as a Treasurer and Controller." In addition, the Petitioner declared that he intends "to continue using [his] expertise and knowledge in the field of finance by working as a Treasurer and Controller, where [he] can provide [his] expert treasury and business 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. 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); Sunshine Rehab Services, Inc. No. 09-13605. 2010 WL 3325442 (E.D. Mich. Aug.20.2010). See also Viraj, LLC v. Holder, No. 2:12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga. May 18, 2013). For more information. visit https://www.aacrao.org/edge.
controllership services to U.S. companies" and that his "career plan in the United States is to continue [his] career by working as a Treasurer and Controller." Then, in response to the Director's requests for evidence, the Petitioner again contended that his proposed endeavor is to be a chief executive/entrepreneur for a wallpaper business.
On appeal, the Petitioner, without explanation, continues to address both endeavors. For instance, the Petitioner states, "[t]he benefit generated to the United States from the Appellant's prospective contributions to the financial industry in the United States will be concrete and substantial" and that his "proposed endeavor to offer his expertise as a Treasurer and Controller in the field ofFinance does not adversely affect U.S. workers." But then, the Petitioner again discusses the business plan for his wallpaper company. The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Because the Petitioner has not consistently described his proposed endeavor, we cannot conclude that he has sufficiently established its substantial merit and national importance. And because the Petitioner has not demonstrated that his proposed endeavor has substantial merit and national importance as required by the first Dhanasar prong, he is not eligible for a national interest waiver. Therefore, we reserve our opinion regarding the second and third Dhanasar prongs. See INS v.
Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7.
ORDER: The appeal is dismissed.