The Petitioner seeks secondpreference immigrant classification as either a member ofthe professions holding an advanced degree or 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 did not qualify for classification as either a member of the professions holding an advanced degree or an individual of exceptional ability, nor had she 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 additional documentation and a brief asserting her eligibility 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 mustfirst demonstrate qualification for the underlying EB-2 visa classification (emphasis added), 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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
I
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner demonstrates: (1)thattheforeignnational'sproposedendeavorhasbothsubstantialmeritandnational 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. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
Analysis
On the Part 6 of the Form I-140, Immigrant Petition for Alien Worker, the Petitioner provided 1he folowing: 1. Job Title: Medical Researcher
2. SOC Code: 19-1042
3. NontechnicalDescriptionofJob:Conductresearchdealingwiththeunderstandingofhuman diseases and the improvement ofhealth. ThePetitionerconfirmedthisinformationinltem9 oftheFmmETA 750PartB, U.S. Department of Labor, Employment and Training Administration, Application for Alien Employment Certification (Form ETA 75OB), indicating that the "Occupation in Which Alien is Seeking Work" is "Medical Researcher." In addition, the Petitioner stated in herAugust29,2018 "Professional Plan and Statement"thatshe intends to continue working as a medical researcher.
My career plan in the United States is to work, making substantial contributions in the Medical fieldandHealthcareindustrythroughadvancedmedicalresearch. Myextensivecareerwmking in steep research capacities within the biology and microbiology sectors will be beneficial to 1he U.S.' s healthcare and medical environment, which is currently experiencing severe shortages of Medical Researchers. I will be able to work in research and development, at colleges or universities, professional schools, hospitals, pharmaceutical, and medicine manufacturing companies,andevenphysicianoffices. Medicalresearchisattheforefrontofclinicaladvances, and I will dedicate myselftowards making advances ofmajorsignificance.
A. Advanced Degree
The Petitioner holds a "Licenciada em Ciencias Biologicas" from the _ _ _ _ _ _ _ _ Iin Brazil. According to the American Association of Collegiate Registrars and See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionary in nature).
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(£.D. Mich. Aug. 30, 2010); Sunshine Rehab ServicesIn, c. No. 09-13605, 2010WL 3325442(£.D. Mich.Aug. 20,2010).Seealso Viraj. LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. Ga.May 18,2013).
Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE), professional license to teach at a designated level of instruction (pre-school through upper secondary education)" and is equivalent to a U.S. bachelor's degree. this "is the
Asnotedabove,theregulationat8C.F.R. §204.5(k)(2)indicatesthat"[a]UnitedStatesbaccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the In response to the Director's request for evidence (RFE), the Petitioner provided two letters verifying her employment. The first letter, froml Iindicates that the Petitioner was employed as a "Pedagogical Consultant In Biology Teaching" on a part-time basis from February 1, 2007untilDecember3,2012andprovidedsixbulletpointdiscussingherjobduties. Theletterdoes not,however,specifythenumberofhoursthePetitionerworkedperweek. Further,notonlydothese dates contradict the information the Petitioner provided on her resume (which lists the dates of 5 employment as "2009-2012" , but she did not include this position on the Form ETA 750B • The secondletter,from ______________ statesthatthePetitionerwasapart-time Educational Coordinator of Biology for 20 hours per week from January 16, 2012 until December 3, 2017 and included a list of seven duties.Inconsistencies in the record The Petitioner, however, indicated on the Form ETA 750B, that she worked 40 hours per week in this position. Notably, the Form ETA 750B also indicates that the Petitioner worked 40 hours per week for each of three separate employers between November 4, 2013 and December 30, 2017. The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
1988). IfthePetitionerwantedthelettertobeconsidered,sheshouldhaveprovideditinresponseto theRFE. Id. For all of these reasons, the Petitioner has not provided sufficient and consistent information to establish The Petitioner completed her degree on Janua1y 16, 2008. Therefore, we cannot consider experience which occurred before this date to meet this requirement.
The Form ETA 750B, which the Petitioner signed under penalty of perjury,instructs the preparer to "list any otherjobs related to the occupation for which the a lien is seeking certification, as indicated in Item 9 ."
Although the Petitioner included this position on the Form ETA 750B, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) states that a petition foran advanced degree professionalmust be accompanied by"[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 experienceinthespecialty." Wewouldfurthernotethat,a!thoughtheletterstatesthatthepositionwaspart-time,the Petitioner indicated on the Form ETA 750B that it was full-time i.e., 40 hours per week. specialty shall be considered the equivalent of a master's degree."
We also acknowledge the Petitioner's submission on appeal of a letter from regardingpaii-time employment as an "Elementary andMiddle School Teacher."
Petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respondtothatdeficiency,weneednotacceptevidenceofferedforthefirsttimeonappeal. SeeMatter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA that she is a member of the professions holding an advanced degree.Evidence submitted too late
The regulation at 8 C.F.R. § 103.2(a)(l) states, in pertinent part:
Every benefit request or other document submitted to DHS must be executed and filed in accordance with the form instructions ... and such instructions are incorporated into the regulations requiring its submission.
We would also note that accordingto the submitted"Howto Become a Medical Scientist" section ofthe Occupational _ _ _ _ _ _ However, when a
B. ExceptionalAbility
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution o f learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
The Director concluded that the Petitioner meets this criterion and we agree. However, we note that section203(b)(2)(C) ofthe Actprovides that the possession ofa degree, diploma, certificate or similar award from a college, university, school or other institution ofleaming shall not by itselfbe considered sufficient evidence of exceptional ability.
Evidence that the alien has commanded a salary, or other remunerationfor services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) The record contains information such as the Petitioner's salary for her part-time positions, income from her business in Brazil, tax records, and bank statements. While we may agree with the Petitioner that she "should be evaluated based on the wage statistics or comparable evidence in" her home country, that does not relieve her from providing evidence which establishes that such payments were aresultof,orotherwisedemonstrates,exceptionalability. Withoutmore,wecannotconcludethatshe meets this criterion.
Evidenceofmembershipinprofessionalassociations. 8C.F.R.§204.5(k)(3)(ii)(E).
The Petitioner asserts that her membership in the Association of Southeastern Biologists meets this On appeal, the Petitioner asserts that she meets the four criteria addressed below.
As explained by the Director, however, the provided information "does not indicate the date of membership." The Petitioner must establish eligibility at the time of filing. 8 C.F.R § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971).Not eligible at the time of filing Without evidence which demonstrates that she was a member at the time of filing, we cannot conclude that she has met this criterion. criterion.
OutlookHandbook (OOH) entry for Medica1Scientists, which corresponds to the provided SOC code 19-1042, they "typicallyhaveaPh.D.,usuallyinbiologyorarelatedlifescience. Somemedicalscientistsgetamedicaldegreeinstead of,orinadditionto,aPh.D." Whilenotabasisforourdecision,thePetitionerhasnotestablishedthatherteachingdegree qualifies herforthepositionofmedical researcher. Further, we note thatthe definitionat8 C.F.R. § 204.5(k)(2) states, in pertinent part, that "[i]f a doctoral degree is customarily required by the specialty, the a lien must have a United States doctomte or a foreign equivalent degree." In other words, the regulation does not allow for a combination ofeducation and experience if "a doctoral degree is customarily required by the specialty."
Evidence ofrecognitionfor achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
As explained by the Director, the submitted evidence does not establish that the Petitioner has been recognized for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations as required by the plain language of theregulation. Forexample,whilethelettersarecomplimentary,theydonotsufficientlyestablishthe Petitioner's significant contributions to the field. Regarding the submitted certificates and/or awards, the Petitioner has not demonstrated the requirements to receive them or that they are the result of her achievements and significant contributions such that we may conclude that she meets this criterion.
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification.Exceptional ability not established As the Petitioner has not met the threshold requirement for this classification, further analysis of her eligibility for a national interest waiver would serve no meaningful purpose.
We will, however, note that in response to the Director's RFE, the Petitioner provided a new "Professional Plan & Statement" dated January 5, 2021, in which she added "entrepreneur" to her proposed endeavor and indicated that she will "serve as a Biologist, Researcher, and Entrepreneur for [her] company." In addition, she submitted a business plan which describes the company as follows:
This company will operate in the online trade of vitamin and supplement[] products, among others, but those of organic origin, either in natural form or with some complexity in packaging and encapsulation.
The company's first products will be mixed dried plants, natural juices, and supplement capsules of organic origin. The company will also ... publish[] recipes for the preparation of organic products, as well as online and in-person training for current or future producers of organic products, as a way to expand the offer of products on the marketing portal and to offer consumers with these new products, selling them online or through points of sale in agreed establishments.
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. § 103.2(b)(1 ), (8), and (12). Here, the Petitioner did not clarify her specific proposed endeavor, but rather added the role of "entrepreneur." A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant material changes are made to the initial request for approvaL a petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.Tried to change the endeavor after filing
ORDER: The appeal is dismissed.