The Petitioner, a marketing manager, seeks second preference immigrant classification as a member of the professions holding an advanced degree, and 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 record did not establish that the Petitioner's proposed endeavor is of national importance, or that a waiver ofthe job offerrequirementwould, on balance, benefitthe United States. The matter is now before us on appeal 8 C.F.R. § 103.3.
T h e P e t i t i o n e r b e a r s t h e b u r d e n o f p r o o f to d e m o n s t r a t e e l i g i b i l i t y b y a p r e p o n d e r a n c e o f t h e e v i d e n c e . Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
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. Section 203(b)(2)(B)(i) ofthe Act.
An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent ofa master's degree. 8 C.F.R. § 204.5(k)(2).
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an individual of exceptional ability, 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 p. 2 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, 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.
Advanced Degree Professional
The Petitioner initially claimed to qualify as both an individual of exceptional ability and a member oftheprofessionswith"theequivalentofanAdvancedDegree." TheDirectorconcludedthatthe Petitioner did not establish exceptional ability, and the Petitioner does not dispute this conclusion on appeal.
The Petitioner states, on appeal, that the Director "incorrectly denied the petitioner's qualification as an Advanced Degree professional." The Director, however, concluded that the Petitioner "has established he is a professional holding an advanced degree." Nevertheless, we disagree with the Director's conclusion. We will remand the matter to afford the Petitioner the opportunity to respond to the information below.
When he filed the petition in November 2018, the Petitioner claimed the following timeline:
- September 2009-July 2012: The Petitioner earned a three-year degree in business administration atl Business School in France. All subsequent claimed education and employment took place in Brazil.
- September 2013-January 2014: The Petitioner owned and operated
- March 2014-May 2015: The Petitionerworkedforl l
- April 2015-November 2016: The Petitioner earned a two-year master's degree in business administration at
- June2015-April2018: The Petitioner worked for
- August 2018: The Petitioner arrived in the United States as an 0-1 nonimmigrant.
- November2018: ThePetitionerfiledtheimmigrantpetitiononhisownbehalf.
A credential evaluation by a professor at the City University of indicates that, "based exclusively on Academics," the Petitioner holds the equivalent of a United States baccalaureate degree, and thus the Petitioner's Brazilian degree does not qualify as an advanced degree. But the evaluation further indicates that the Petitioner also accumulated "[f]iveyears and seven months" of "Qualifying Experience and Training." A U.S. baccalaureate degree or foreign equivalent degree and five years of progressive post-baccalaureate experience in the specialty is equivalent to a master's degree. 8 C.F.R. § 204.5(k)(2).
Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in na ture).
The Director concluded that the Petitioner's degrees and post-baccalaureate experience are equivalent to an advanced degree. Further review of the record, however, casts doubt on this conclusion.
For employment experience to count as being equivalent to a master's degree, the experience must follow, not precede, the baccalaureate degree. 8 C.F.R. § 204.5(k)(2). The Petitioner has not claimed that his 2012 French degree, by itself, is equivalent to a U.S. baccalaureate degree.Degree not shown to be a U.S. advanced degree equivalent The educational equivalency evaluation cited both the French degree and the later Brazilian degree as being collectively equivalent to a U.S. baccalaureate degree; the evaluation indicates that the three-year French degree, alone,isequivalenttothreeyearsofstudytowardafour-yearU.S.baccalaureatedegree. Ifso,then the Petitioner's post-baccalaureate experience did not begin until after he completed his Brazilian degree in November 2016,just two years before he filed the petition in November 2018. His claimed experienceatl Iandmuchofhisclaimedemploymentatl precedes November2016.
Even then, the record does not consistently establish five years of employment experience before the filingdate. Theclaimedemploymentat andl ltotalsaboutfouryearsofemployment experience. The Petitioner's resume, as originally submitted, indicates that he worked forl I I Iforfourtofivemonths,fromSeptember2013toJanuary2014. Businessandtaxfilingsconfirm that the Petitioner formed I lin late August 2013, and the company began operating in earlyI 12013. These periods ofemployment add up to less than the required five years.
The evaluator indicated that "[f]rom July 2012 to January 2014, [the Petitioner] was employed as Manager at I I" The evaluator cited no supporting evidence and the Petitioner did not submit a letter from that claimed employer. We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. But we may give less weight to an advisory statement if it is not in accord withotherinformationorisin anyway questionable. MatterofCaronlnt'l. Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). After the Director issued a request for evidence, the Petitioner submitted a revised resume, removing the reference tol land replacing it with the claim that he worked forl from July 2012 to January 2014. The Petitioner has not submitted a letter froml Ito confirm and describe this claimed employment, as required by 8 C.F.R. § 204.S(g)(l ).
The credential evaluation relies on uncorroborated claims of employment in 2012 and early 2013, and the Petitioner has not shown that his claimed employment before 2016 was post-baccalaureate. Therefore, the Petitioner has not established that, when he filed the petition, he held either an advanced degree or five years of post-baccalaureate experience.
Derogatory Information
The above information casts doubt on the Petitioner's eligibility for classification as a member ofthe professions holdingan advanced degree, butreview ofgovernmentrecords raises additional questions. The petition that granted him 0-1 nonimmigrant status was filed by !Company in November2017,withreceiptnumberl I. Thenonimmigrantpetitionindicatedthat he would be employed in the category of"athletes & related workers." An 0-1 petitioner must be the beneficiary's employer or agent. 8 C.F.R. § 214.2(o)(2)(i). The record, however, does not show that I !Company employed the Petitioner or acted as his agent.
After the approval of the 0-1 petition, the Petitioner applied for a nonimmigrant visa at the U.S. consulate in Sao Paulo, Brazil in Janua 2018. On his application, he indicated that he was then But when asked for information about previous orl IInstead, he atAthletic Club from June 2012 to January 201 7. When asked "Have you attended any educational institutions at a secondary level or employed as a sales manager at employment, the Petitioner did not mention indicated that he had been employed as a above?," the Petitioner responded "no."
The employment proposed in the 0-1 petition and the Petitioner's statements from January 2018 conflict with key claims in the present petition. The Petitioner must resolve these inconsistencies wi1h independent, objectiveevidencepointingtowherethetruth lies.Inconsistencies in the record MatterofHo, 19 I&N Dec. 582, 591- 92(BIA1988). UnresolvedmaterialinconsistenciesmayleadUSCIStoreevaluatethereliabilityand sufficiencyofotherevidencesubmittedinsupportoftherequestedimmigrationbenefit. Id.
The conflicting information is material to the present proceeding because the Petitioner seeks an immigrant classification based on education and employment experience. Past employment is also material to the determination that the Petitioner is well-positioned to advance his proposed endeavor. Misrepresentation of this material information in order to obtain immigration benefits can result in a finding of inadmissibility under section 212(a)(6)(C)(i) ofthe Act, 8 U.S.C. § l 182(a)(6)(C)(i).
Because there is no indication that the Director was aware o f the above information when adjudicating the immigrant petition, we will withdraw the Director's decision and remand the matter for a new ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis. decisiontakingthisinformationintoaccount. TheDirectormayissuearequestforevidence,anotice of intent to deny the petition, or both, in order to afford the Petitioner an opportunity to supplement the record and address any apparent discrepancies.
Tn August 2022, while this appeal was pending, the Petitioner filed a second Form T-l 40petitiononhis own behalf, again seeking a national interest waiver. That petition, with receipt numberl Iwas approved in November 2022. Therecordofproceedingfortheapprovedpetitionisnotpartofthefilebeforeus,andthereforewecannotdetermine whether the approved petition relied on similar claims to the petition now on appeal.