The Petitioner, a software developer, 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. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 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. Matter oJDhanasar, 26 I&N Dec. 884 (AAO 2016).
The Director of the Nebraska Service Center concluded that the Petitioner qualified for classification asanindividualofexceptionalabilityandthathisproposedendeavorhadsubstantialmerit. However, the Director concluded that the evidence did not establish that the Petitioner is well positioned to advance the endeavor, or 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 additional documentation and a brief asserting that he 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 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 p. 2 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 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 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 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.
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 p. 3 evidence in the form of letters 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 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.
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 In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). deny a national interest waiver to be discretionary in nature). to waive the requirements of a job offer and thus of a labor certification.
See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or See Dhanasar, 26 I&N Dec. at 888-91. for elaboration on these three prongs.
Dhanasar states that after a petitioner has
Analysis
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 an individual of exceptional ability. At initial filing, the Petitioner indicated in his cover letter that he is filing for EB-2 classification based upon his advanced degree in software development and exceptional abilities in the information technology sector. The Petitioner indicated his proposed endeavor is to "work for companies, in any sector, that are in need of his expertise to improve and grow their businesses" and "will use his skills to develop IT teams and systems, which will improve U.S. business productivity by allowing small, medium, and large-sized companies to succeed in a highly competitive global environment, where technology is a necessity, and IT is linked to economic output and development." He asserts his work will include "improving a company's software development department by implementing efficient practices and updated tools designed to boost the performance of the companies which he serves."
The Petitioner also discussed and submitted documentation relating to his claims o f eligibility relating to an advanced degree professional and an individual of exceptional ability. The Director's decision, however, does not reflect that he made a determination whether the Petitioner qualified as an advanced degree professional. Instead, the Director only addressed his eligibility as it pertained to an individual of exceptional 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 10l(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 occupation." 8 C.F.R. 204.5(k)(2). 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, 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 former 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).
The Director's decision does not determine whether the Petitioner's occupation, software developer, qualifies as a member of the professions. In addition, the Director does not conclude whether the Petitioner's "Informatics Technologist" degree frottj lis a foreign equivalent of a baccalaureate degree followed by at least five years of progressive experience in the specialty.Degree not shown to be a U.S. advanced degree equivalent
In light of the above, the Director should first determine whether the Petitioner's occupation as a software developer is a member of the professions. If so, the Director should consider whether the Petitioner's "Informatics Technology" degree meets the foreign equivalent of a baccalaureate degree Section 101(a)(32) ofthe Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
Further, in order to show an individual holds an advanced degree, p. 5 followed by at least five years of progressive experience in the specialty. If the Director concludes that the Petitioner is not an advanced degree professional, he 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 ofthe regulatory criteria under 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).
While the Director found the Petitioner met three of the five regulatory criteria, he did not specify which ones or evaluate each type of evidence to determine if it meets the plain language of the evidentiary criteria and also did not make a final merits determination On remand, the Director should review the Petitioner's arguments made on appeal and determine if the Petitioner has met the above regulatory criteria. If so, the Director should then conduct a final merits determination to conclude whether the Petitioner has achieved the level of expertise significantly above that ordinarily encountered for exceptional ability classification.
C. National Interest Waiver
The Director did determine that, although the Petitioner did not meet the second and third prongs of Dhanasar, he had met the first 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 that the Petitioner's proposed endeavor has substantial merit and national importance. In addition, the Director did not sufficiently conduct an analysis of the third prong. Instead, the Director stated that since the Petitioner had not met the second 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 consider whether the Petitioner has satisfied the eligibility requirements for classification as a member of the professions holding an advanced degree or as an individual of exceptional ability. In addition, 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 See, USCIS Policy Memorandum PM-602-0005.1, Evaluation ofEvidence Submitted with Certain Form 1-140 Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD 11-14 (Dec. 22. 2010). https://www.uscis.gov/policymanual/HTML/PolicyManual.html. regarding the level o f expertise for the immigrant visa classification. matter for further consideration ofthe record, including claims on appeal, and entry ofa new decision. The Petitioner did not claim eligibility for the license criterion under 8 C.F.R. § 204.5(k)(3)(ii)(C). We have the authority to withdraw a decision and remand the case for further action, with an order that it be certified p. 6 ORDER: The decision of the Director is withdrawn. The matter is remanded for farther proceedings consistent with the foregoing opinion and for the entry of a new decision which, if adverse, shall be certified to us for review. back to us if the new decision is adverse to the affected party. 1 USC1S Policy Manual F, https://www.uscis.gov/policymanual. This order is not meant to compel approval of the remanded case, but is designed to preserve the affected party's ability to seek appellate review without payment of a second appeal fee. Id.