The Petitioner, a dance competitor and instructor, seeks second preference immigrant classification as a 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 did not qualify for classification as an individual ofexceptional ability, and that he had not had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
With the appeal, the Petitioner submits a brief asserting that he is eligible for exceptional ability classification and 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 novo 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) 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.
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating 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). 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 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has p. 3 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 to waive the requirements of a job offer and thus of a labor certification.
Analysis
A. Exceptional Ability
The Petitioner asserted that he meets at least three of the regulatory criteria for classification as an individual of exceptional ability. In denying the petition, the Director determined that the Petitioner fulfilled only the recognition for achievements criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F).
In the appeal brief: the Petitioner claims that he also meets the ten years of full-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and the membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), but does not specifically identify any erroneous conclusion of law or statement of fact relating to the Director's determinations for these criteria. even reference the Director's discussion regarding the aforementioned criteria. Additionally, while the Petitioner states that "[b]ased on the evidence submitted," he has met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E), he does not identify the evidence. Without offering specific arguments to overcome the Director's findings, the Petitioner has not established that he 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
B. National Interest Waiver
The remaining issue to be determined is 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. For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar analytical framework. recommendation submitted by the Petitioner did not indicate he has "at least 10 years of full-time experience in an occupation involving dance." The Director also noted that while ·'the Petitioner submitted his own letter stating that he has over 10 years of full-time experience in the field of dance," his ·'own statement regarding his employment in the field is not sufficient to meet this criterion."
See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs.
For example, with respect to the criterion at 8C.F.R. §204.5(k)(3)(ii)(B), the Director stated that the letters of Nor does the appeal brief
Regarding his claim of eligibility under Dhanasar's first prong, the Petitioner stated that he intends to use his "expertise and experience inl !dance to represent the U.S. at major! Idance events and to train U.Sj ldance athletes." He contends that his proposed work stands to "raise [the] prestige of the U.S. [i]n the international swing dance arena and increase the competitiveness of the country in this field."
The Petitioner provided a letter froml Ia world professional ten dance champion, asserting that the Petitioner's "proposed endeavor, which is competing inl Idance championships, promoting! Idance on the national level, and coachingI Ito future champions. clearly has substantial merit and national importance." The record also includes a letter fr01~ la dance coach and choreographer forI Ial Idance organization, stating that the Petitioner "intends to compete on the national scale, inspire and teach future champions" and that his proposed work stands "to further promote and develop I Idancing nationwide and contribute to the cultural enrichment" of the United States.
In denying the petition, the Director concluded that the Petitioner had not demonstrated the national importance of his proposed endeavor. The Director stated that the Petitioner did not submit a detailed description ofthe proposed endeavor and sufficient documentary evidence showing that his undertaking stands to have broader implications in his field, significant potential to employ U.S. workers, substantial positive economic effects, or a broader effect on cultural or artistic enrichment at a level indicative of national importance.No broader implications shown
On appeal, the Petitioner maintains that his "proposed endeavor is of national importance" and that his work offers a "national benefit as he will continue to teach dance applying his innovative and uniquely effective approach."
In determining national importance, the relevant question is not the importance of the industry or profession in which the individual will work; instead we focus on the "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking may have national importance for example, because it has national or even global implications within a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance." Id. at 890.
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement we look to evidence documenting the "potential prospective impact" ofhis work. While the Petitioner asserts that he intends to compete and teach dancing in the United States, he has not offered sufficient information and evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of national importance. For example, he has not demonstrated that his involvement as a competitor stands to impact his sport or U.S. cultural interests at a level consistent with having national importance. Nor has he shown that his proposed instruction is at a level that would offer national implications forl Idance training, or that the implications of such work stand to impact the sport more broadly. In Dhanasar we determined 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 .
Here, we conclude the record does not show that the Petitioner's proposld endeavor stands to sufficiently extend beyond his future competitions and trainees to impact dancing more broadly at a level commensurate with national importance.
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effectsforournation. WithoutsufficientinformationorevidenceregardinganyprojectedU.S.economic impact or job creation attributable to his future work, the record does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's competitive participation and dance instruction would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed work does not meet the first prong of the Dhanasar framework.
Because the documentation in the record does not establish the national importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstratedeligibilityforanationalinterestwaiver. Furtheranalysisofhiseligibilityunderthesecond and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.
Conclusion
The Petitioner has not established that he satisfies the regulatory requirements for classification as a as an individual o f exceptional ability . Furthermore, as the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude that he has not established he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.