The Petitioner, a physical therapist, 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 Nebraska Service Center denied the petition, concluding that the Petitioner had not established his eligibility as a member ofthe professions holding an advanced degree, as an individual of exceptional ability, and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
O n a p p e a l , t h e P e t i t i o n e r a s s e r t s t h a t h e is e l i g i b l e a s a m e m b e r o f t h e p r o f e s s i o n s h o l d i n g a n a d v a n c e d degree and 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. - 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]heAttorneyGeneralmay,whentheAttorney 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.
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 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.
Furthermore, while neither the statute nor the pertinent regulations define the term "national interes~" 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 impmiance, 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, Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 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. Inperf01ming 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 toobtain 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 wan-ant 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 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 alien has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitionermaypresent"[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 cunent or former employer(s) showing that the alien has at least five years ofprogressivepost-baccalaureate experience in the specialty." 8 C.F.R § 204.5(k)(3)(i)(B).
The Director determined that the Petitioner received the foreign equivalent of a United States baccalaureate degree. However, the Director concluded that the Petitioner did not demonstrate at least fiveyearsofpost-baccalaureateexperience. Onappeal,thePetitionerdoesnotcontesttheDirector's determination relating to his degree but argues that he has at least five years of experience.
At initial filing, the Petitioner provided the following three employer letters:
- I I-Physical Therapist-July 1, 2016to Present (letter dated December 19, 2018)- 30 hours per week
- I ~- Physical Therapist- February 1, 2011 to February 28, 2013 - 10 sessions per week
- I I-PhysicalTherapistAidandAssistant-March5,2007toJanuary31,2011- 30hoursper week The Petitioner also submitted the following four letters from individuals who received physical therapy treatment: to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
- ~--------~- January2011toMarch2015-"2to3sessionsaweek"
- ~ - - - - - - - - - - - - - - ~ - July 2011 to February 2019 - "[t]he frequency of treatment started as 3 times a week but during 2016 and 2017 it was 5 times a week" and "[s]ince the beginning of2018 we returned to the session to 3 times a week"
- I I-March 2013- February 2019- "2 sessions a week" •._______________. March2013- February2019-"onesessionaweek" The Director stated in the request for evidence (RFE):Five years of progressive experience not documented
According to the evidence you submitted, you have not had five years of full-time progressive,post-baccalaureateexperienceinyourspecialty. Youreceivedyourdegree on June 26, 2012. Since June 26, 2012,youhaveworkedpart-timein two different clinics. You have also provided some in-home physical therapy sessions to a variety of clients as a self-employed individual. The letter froml Iestablishes you had approximately 2 years and 172 days of part-time employment. The letter froml I I !establishes you had approximately two years and 29 days of part-time employment. Even if these two positions were full-time positions, they do not establish you have the required five years of progressive experience as a physical therapist. However,theyarenotfull-timepositions,sothecalculatedtimewouldbeeven less.
The letter from !discusses your work experience prior to your degree confeml and in the role of an aide/assistant. It cannot be used to calculate your progressive, post- baccaulareate experience. The various letters from individuals establish that you have provided vaiious levels of in-home care to patients as a self-employed physical therapist during the years betweenJanuaiy 2011 andFebrua1y 2019. However, the evidence you submitted does not establish that you worked full-time in a progressive manner during your self-employment. Thus, it does not appear that you can qualify for the classification as a member ofthe professions holding an advanced degree.
In response, the Petitioner submitted a revised letter froml Iclaiming that the Petitioner workedas "aFull-timePhysicalTherapist""withanaverageof40hoursaweek." Indenyingthepetition, the Director concluded:
The Petitioner received his degree on June 26, 2012. Subsequent to June 26, 2012, he workedintwodifferentclinicspriortothefilingdateofthispetition. Healsoprovided some in-home physical therapy sessions to a variety of clients as a self-employed individual. The two letters froml Iindicate he worked from February 1, 2011 to February 28, 2013. The letter submitted in response to theRFEletterclarifiesthatthisworkwasconsideredfull-timeemployment. However, he didn'tgraduateuntilJune 26, 2012. Thus, theamontoftime he gained experience with this employer after he graduated equates to approximately 8 months of full-time, progressive, post-baccalaureate experience (June 26, 2012 through February 28, 2013). The letter froml Iestablishes he had approximately 2 years and 172 days of part-time employment (at 30 hours/week) or the equivalentof 1 year and 10 months of full-time experience. Thus, his work with these two clinics equates to approximately 2 years and 6 months of full-time, progressive, post-baccalaureate experience.
I
The four letters from individuals attesting to his work as a self-employed physical therapist during the years between January 2011 and February 2019 establish that the petitionerprovidedvariouslevelsofin-homecaretopatients. However,thelettersthe petitioner submitted do not establish that he worked full-time in a progressive manner duringtheentireperiodofhisself-employment. Infact, duringaportionofthetimeframe in which he indicated he was self-employed (March 2013 to January 2019), he was workingpart-timeforl l(July2016toJanuary2019). Thefourlettersfrom his patients do not establish he had full-time experience as a self-employed physical therapist and the petitioner did not submit any other evidence of his self-employment On appeal, the Petitioner argues:
We would like to point that for 5 years and 10 months, [the Petitioner] wotked concurrently atl I, which was a part-time job and as a home care physical therapist in the remaining hours. This means that during all these years, [the The record, however, does not support the Petitioner's claim that he "worked concurrently" at1.....- ~ Iand as a home care physical therapist for 5 years and IO months. As indicated above, the letter froni.__ _ _ _ _.bstates that the Petitioner worked from July 1, 2016 to Present (letter dated December 19, 2018), a period of approximately 3 years and 5 months, not 5 years and 10 months. Furthermore, the letters from the private individuals do not provide sufficient information to determine the number ofhours he worked. While the letters indicate the number ofweekly sessions, they do not specifythelengthofthosesessionsto determinehowmuchheworkedonapart-timebasis.
The Petitioner further contends:
I
When adding the time worked previously a t ~ - - - - - - - - - - - - - ~ ~ lfrom the date of his graduation in May 2012 to February 2013, we can add another 8 months ofprogressive full-time experience working as a physical therapist, for a grand amountof5 years and 9 months ofprogressive full-time experience working as a physical therapist post his graduation.
Petitioner] worked both as a paii-time employee forl well as providing home care during the other part of the day. time [the Petitioner] worked part-time for! home care for private patients, from March 2013 to January 2019, he demonstrates a total o f 5 years, 10 months o f full-time experience working as a physical therapist.
O
As discussed above, the Petitioner claims to have 5 years and 10 months of combinedI employment and then adds 8 months ofl !employment, for a "grand amount of 5 years and 9 months." The Petitioner has not sufficiently explained how he goes from 5 years and 10 months, adds 8 months, and comes up with 5 years and 9 months~ one month less from hisl I/self-employment employment claim.
Ias In total, when adding the land providing
Vself-
Furthermore, the Petitioner has not established how working full-time to working part-time jobs demonstrates progressive post-baccalaureate experience in the specialty consistent with the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). The Petitioner has not shown that he has advanced, through employment, in his physical therapy profession.
Without fmiher information and evidence from his employers, the Petitioner has not established that he has at least five years of progressive post-baccalaureate experience in physical therapy to constitute the equivalent to an advanced degree in that specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R.
Conclusion
The Petitioner has not established that he satisfies the regulatory requirements for classification as a member of the professions holding an advanced degree. In addition, we need not reach a decision whether,asamatterofdiscretion,heiseligible fororotherwisemeritsanationalinterestwaiverunder § 204.5(k)(3)(i)(B). the Dhanasar analytical framework. Accordingly, we reserve this issue. dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. ORDER: The appeal is dismissed.
The Petitioner does not address the Director's determination regarding his eligibility as an individual of exceptional ability,nordoes he argue his eligibility for such classification on appeal. Accordingly, we deem this previous claim to be th waived. See Rizk v. Holder, 629 F.3d I083, I091 n.3 (9 waived).
Cir.2011) (finding that issues not raised in a briefare deemed See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 (declining to reach alternate issues on appeal where an applicant is otherwise ineligible).
The appeal will be