The Petitioner, a financial analyst, seeks second preference immigrant classification as either a member of the professions holding an advanced degree or as an individual of exceptional ability, as well as a national interest waiver of thejob 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 he is an individual of extraordinary ability 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 a brief asserting that he is an advanced degree professional and 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; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). Upondenovareview,wewilldismisstheappeal.
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 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 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 of 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) 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 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. Although the Petitioner initially claimed to qualify for the underlying EB-2 classification as both a member of the professions holding an advanced degree and as an individual of exceptional ability, the Director's decision did not consider whether the Petitioner qualified as an advanced degree professional.
On appeal, the Petitioner points to the Director's failure to address this issue in the request for evidence (RFE). The regulation at 8 C.F.R. § 103 .2(b)(8), however, permits the Director to deny a petition for failure to establish eligibility without having to request evidence regarding the ground or grounds of ineligibilityidentifiedbytheDirector. Further,eveniftheDirectorhaderredasaproceduralmatter, it is not clear what remedy would be appropriate beyond the appeal process itself, which provided the Petitioner an opportunity to supplement the record and establish that he is either an advanced degree professional or an individual of exceptional ability. Therefore, it would serve no useful purpose to remand the case simply to afford the Petitioner another opportunity to supplement the record with new evidence.
Notably, the Petitioner does not claim to be an individual of exceptional ability or even address any of The "Evaluation of Training, Education, and Experience" (evaluation states that the Petitioner "enrolled in the Master's degree program in Business Administration a.___ _ _ _ _ _ _ _ __, an In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of Transportation, 22 T&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01).
S e e a l s o P o u r s i n a v. U S C I S , 9 3 6 F . 3 d 8 6 8 , 2 0 1 9 W L 4 0 5 1 5 9 3 ( 9 t h C i r . 2 0 1 9 ) ( f i n d i n g U S C T S ' d e c i s i o n t o g r a n t o r d e n y a na tionalinterest waiver to be discretionary in nature). addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att 'v Gen., 40 I F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (I Ith Cir. 1998); Hristov v. Roark, No. 09- CV-27312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 20 l l)(plaintiff's claims were abandoned as he failed to raise them on appeal to theAAO). certification. the criteria at 8 C.F.R. § 204. 5k(3 )(ii) on appeal. Therefore, we consider this claim abandoned. the Petitioner relies upon his academic records, educational evaluation, and a letter from his employer to establish that he is an advanced degree professional.
SeeDhanasar, 26I&NDec. at 888-91, forelaboration onthesethreeprongs.
See Matter o{R-A-M-. 25 I&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue Instead, p. 4 accredited institution of higher education in Brazil. [The Petitioner] completed his studies in 2014 and he received a Master of Business Administration in Corporate Management."
Contrary to the evaluator's description, however, the Petitioner received a "Certificate of the Lato Sensu Graduation Course" froml IAccording to the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE),
"[p]rofessional development and specialization programs are considered lato sensus (wide sense graduate-level programs) and follow independent legislation. Such programs lead toward professional certificates, not graduate degrees." It also states that "[c]redits earned in lato sensu graduate programs may later be transferred into a master's degree program given that institutional requirements are met and institutional approval is granted."
The evaluator ultimately concludes that:
However, the evaluator does not claim to have reviewed any employment letters to establish the We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. Matter ofSea, Inc., 19 I&N Dec. 817,820 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any way questionable, we may discount or give less weight to thatevaluation. Id.
The Petitioner also argues that because the Director "confirmed that" the letter from his previous employerJ lwas "sufficient for the plain language requirement[]" for the criterion at 8 C.F.R. § 204.5k(3)(ii)(B), then it also establishes that he is an advanced degree professional. However, unlike the exceptional ability criterion which only requires a "showing that the alien has at least ten years of full-time expe1ience in the occupation," the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) WeconsiderEDGEtobeareliablesourceofinformationaboutforeigncredentialequivalencies. SecCon/IucnccInfem.. 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 I0WL3464314(E.D. Mich. Aug. 30, 20 l0);SunshineRehabServices, Inc. No. 09-13605, 2010WL 3325442(£.D. Mich.Aug. 20,2010).See also Viraj, LLCv. Holder, No. 2: 12-CV-00127-RWS,2013 WL 1943431 (N.D. Ga.May 18,2013).
Sec https://www.aacrao.org/edge/country/brazilforinformation regarding the education system in Brazil and credential equivalencies (last accessed July 20,2021).
Based upon the information in EDGE, the Petitioner has establishedthat his four-year bachelor's degree is the foreign equivalentofa U.S. degree R The job duties listed in the "professional experience" section ofthe evaluation are taken directly from the Petitioner's resume. Considering that a four-year Bachelor's degree work experience in the field of Business Administration is equivalent to a Master's degree in Business Administration, it is my expert opinion that [the Petitioner] with a four-year degree and more than fifteen years ofexperience, has no less than the equivalent ofa Master's degree in Business Administration.
Petitioner's work history or experience, as required by 8 C.F.R. § 204.5(k)(3)(i)(B). bass for the evaluator's determination that "[t]he responsibilities handled by [the Petitioner] throughout his career are indicative of Master's-level coursework" and were "progressively responsible" is unclear. followed by more than five-years of full-time
As a result, the p. 5 requires "evidence in the form of letters from current or former employer(s) showing that the alien has at least five years ofprogressive post-baccalaureate experience in the specialty." The referenced letter only confirms that the Petitioner "was an employee of this company in the period from 6/18/2007 to 3/27/2018 and his last position was General Manager - Middle."Support letters generic or unsupported Without additional information regarding the Petitioner's duties, we are unable to conclude that the Petitioner has at least five years o f progressive experience as required.Five years of progressive experience not documented
For all of these reasons, without more, the Petitioner has not established that he is an advanced degree professional. Inaddition,asthePetitionerhasnotmetthethresholdrequirementforthisclassification, further analysis ofhis eligibility for a national interest waiver would serve no meaningful purpose.
Conclusion
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.