The Petitioner seeks second preference immigrant classification, 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).
TheDirectoroftheTexasServiceCenterdeniedthepetition,concludingthatthePetitioner hadnot established 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 a briefasserting that the Beneficiary 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 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.
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 demonstrate eligibility as an individual of exceptional ability, a petitioner 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) In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). p. 3 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
Analysis
As an initial matter, we note that the Director did not address whether the Petitioner 1) is qualified for the underlying EB-2 visa classification and 2) established that his proposed endeavor has both substantialmeritandnationalimportanceunderDhanasar'sfirstprong. TheDirector'snewdecision should include an analysis ofthese two issues.
Regarding the proposed endeavor, on the Form I-140, Immigrant Petition for Alien Worker, the Petitioner provided the following information: Part 5 - Additional Information About the Petitioner
Section 11. Occupation: Computer Scientist
Part 6 - Basic Information About the Proposed Employment Section 1. Job Title: Lecturer
Section 2. SOC Code: 25-1021
Section 3. Nontechnical Description of Job: Research and collaboration on computer science and data science projects, teaching computer science and IT courses, syllabus and material development, administrative and community services.
In the initial filing, the Petitioner indicated that "[i]n the future, [his] plan is to continue [his] research work in th[e] field and improve existing data analytics techniques to address challenges, and apply them to various types of application scenarios such as education, health care and medicine, transportation, social media, logistics, finance, and more." The Petitioner also stated that his "long term plan is to continue [his] work in academia and research. There is a high demand for computer science, especially data management and data science researchers in both academia and national research centers." He further indicated that during his current appointment, which "will be renewed y e a r l y a t l e a s t t h r o u g h M a y 2 0 2 3 , " h e " w i l l l o o k f o r a t e n u r e d t r a c k p o s i t i o n a t [ h i s ] c u r r e n t [u ] n i v e r s i t y or other U[.]S[.] [u]niversities so that [he] can continue [his] research in the field." He "will also look for a permanent position at the F[ood and] D[rug] A[dministration] where [he[ can work on data science research in the health care and medicine domain."
See also Poursina v. USCIS, No. 17-16579, 2019WL 4051593 (Aug. 28, 2019) (findingUSCIS' decision to grant or deny a national interestwa iverto be discretionaty in nature). postsecondary. Seehttps://www.onetonline.org/link/summary/25-1021.00#menu. certification.
SeeDhanasar, 26l&NDec. at 888-91, forelaboration onthesethreeprongs.
This standard occupational classification (SOC) code corresponds to the occupation of computer science teachers, p. 4 ~ -------~ chairofthedepartmentofcomputerscienceattheUniversityofl._________. explained in his July 15, 2019 letter that the Petitioner holds the position of lecturer "whose primaty responsibility is teaching." He also stated that they "appreciate and encourage research" and that the Petitioner "is involved in several research projects, where he performs research on various application scenarios such as logistics, health, smart cities, smart metering, productivity in the garment industty, social media, and sensor data management."
In response to the Director's request for evidence, the Petitioner submitted a new letter indicating that he "intend[s] to continue [his] research in the field of applied data science on various application scenarios for solving various data science problems, creating new business opportunities, revealing interesting information from diverse datasets, and thus improving human lives." The letter does not address his prior statements regarding his intention to either continue working in academia or obtain a position at the Food and Drug Administration.
In light of the above, the Director should determine whether there is sufficient and consistent information concerning the nature ofthe Petitioner's proposed future endeavor, as we must rely on the specific proposed endeavor to determine whether (1) it has both substantial merit and national importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. Id.at889. Forexample,asthePetitionerplanstoremaininhiscurrentpositionthroughMay2023,it is unclear how much time he is able to devote to research while his "primary responsibility is teaching." This is significant, as we determined in Dhanasar that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Similarly, the Director should determine whether the Petitioner has sufficiently established the nature of his involvement in the proposed research projects, such as for whom he is perfmming the research or the source of any necessary funding. In addition, the Petitioner initially appeared to be engaged, at least in part, in an active employment search, either for a tenure track position at a university or a permanent position at the Food and Drug Administration. We note, however, that the purpose of a national interest waiver is not to afford a petitioner an opportunity to engage in a U.S. job search. As we explained in Dhanasar, a petitioner must identify "the specific endeavor that the foreign national proposes to undertake." Id. at 889.
Conclusion
For the reasons discussed above, we are remanding the petition for the Director to first address the Petitioner's qualifications for EB-2 classification, the threshold determination in national interest waivercases. TheDirectorshouldthendeterminewhetherthePetitionerhasprovidedsufficientand consistent information regarding his specific proposed endeavor, such that a determination regarding his eligibility for a national interest waiver may be made. If the Director concludes that the proposed endeavor has been sufficiently established, the Director should provide an analysis oftheir conclusions for each of the three prongs of the Dhanasar analysis. The Director may request any additional evidence considered pertinent to the new determination.
ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing analysis and entry of a new decision.