The Petitioner, a software developer, seeks second preference immigrant classification as a member of the professions holding an advanced degree, 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. § l 153(b)(2).
The Director of the Texas Service Center denied the petition, concluding that although the record shows that the Petitioner's proposed endeavor has substantial merit and he is well positioned to advance that endeavor, it did not establish that his proposed endeavor was of national importance or that, on balance, it would be beneficial to the United States to waive the requirement of a job offer, and thus a labor certification, in the Petitioner's case.
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 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 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. -(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 p. 2 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)Waiverofjob 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.
While neither the statute nor the pertinent regulations define the tenn "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f Dhanasar,26I&NDec.884.1 DhanasarstatesthatafterEB-2eligibilityhasbeenestablished,users may,asamatterofdiscretion,grantanationalinterestwaiverifthepetitionerdemonstrates: (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 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.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01).
To establish that it would be in the national interest to waive thejobofferrequirement, a petitionermustgo beyond showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a degree ofexpertise significantly above thatordinarily encountered" in a given area ofendeavor. By statute. individuals of exceptionalabilityaregenerallysubjecttothejoboffer/labor certificationrequirement;theyarenotexemptbyvirtueof their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, or as a member of the professions holding an advanced degree, they must go beyond demonstmting a degree ofexpertise significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest waiver.SeeDhanasar, 26 I&NDec. at 886n.3. certification. p. 3 national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offerorforthepetitionerto 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 The Petitioner is a software developer. Although not discussed by the Director in his decision, the In his decision, the Director concluded that while the evidence established the substantial merit of the Petitioner's proposed endeavor, it did not show that it would be of national interest. Therefore, the PetitionerdidnotmeetthefirstprongoftheDhanasarframework. Inaddition,theDirectorconcluded that the Petitioner's experience working forl Iin Brazil made him well-positioned to advance his proposed endeavor. However, in his analysis of the third prong in the Dhansar framework, the Director determined that the Petitioner's assertions regarding occupational shortages in the IT industry are best addressed through the labor certification process, and thus did not show any national interest factors that would outweigh the benefits inherent in that process. Because he concluded that the Petitioner did not meet the first and third prongs of the Dhanasar analysis, the Director found that the Petitioner did not merit a national interest waiver as a matter of discretion.
On appeal, the Petitioner asserts that his proposed endeavor would have substantial economic impact in helping to build a skilled workforce in an industry with a shortage of talent. He also asserts that these economic benefits and supply of talent to the workforce that would result from his endeavor would, on balance, outweigh the national interest in the protection ofthe domestic workforce through the labor certification process. After reviewing the record, we agree with the Director's conclusion that the Petitioner does not merit a national interest waiver.
A. Substantial Merit and National Importance ofthe Proposed Endeavor
The Petitioner initially indicated that he planned to work for a U.S. company as a software developer, but in response to the Director's RFE he stated that he would start his own IT consulting firm, and included a business plan with that response. This business plan includes projections that the Petitioner's business will have nine employees, including himself, by it's fifth year, and will be earning The record includes a copyofa "TitulodeLicenciado" diploma from[ [University in Brazil, and a "Latu Sensu"diplomafromthe as wellastranscriptsfrombothinstitutionswhichshowthat he completed a four-year "complete" program in Ma thematics. In addition, employment letters verify his progressive work experience in programmer and systems analyst positions for more than five years after completing his four-year degree. to waive the requirements of a job offer and thus of a labor ce1iification.
Analysis
record shows that he qualifies as a member ofthe professions with an advanced degree or equivalent He initially indicated his intent to work as a software developer for a U.S. company, but in response to the Director's request for evidence (RFE) he stated that he would establish an information technology consulting firm to serve large companies and government agencies.
SccDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. p. 4 revenuesofmorethan$1.3millionatthatpoint. Basedupontheseprojections,thePetitionerasserts on appeal that his proposed endeavor will have a significant economic impact by "building [a] new skilled workforce and creatingjobs," and will therefore be of national importance. He also refers to industry reports of a shortage of workers in the IT industry in the United States, and asserts that his knowledge and skills will "fill a void in the U.S. market."
Asnotedabove,inthefirstprongwefocusonthespecificendeavorproposedbyapetitioner. Here, based upon our review of the record, we agree with the Director's conclusion that the Petitioner's proposed endeavor as a consultant and entrepreneur in the IT industry is of substantial merit in the area o f business.
Turningto nationalimportance,wenotethattherelevantquestionisnottheimportanceoftheindustty 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. Here, the Petitioner must demonstrate the national importance of his work in the IT industry, rather than the national importanceoftheindustryoverall. InDhanasar,wenotedthat"welookforbroaderimplications"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.
We will first consider the Petitioner's assertion that his creation o f a new business will have significant potentialtoemployU.S.workers. Whilehisbusinessplanprojectstheemploymentofeightadditional workers within five years of creation, the record is absent of documentary evidence to show that the proposed business has significant potential to do so. More importantly, the evidence does not demonstrate that even if the business was able to employ eight workers in five years, this would have substantial positive economic effects.Job creation or economic claims unsupported Although the business plan doesn't mention a specific location for the proposed company, it includes a comparison to IT consulting companies in the Florida area. But the record lacks evidence thatl lis an economically depressed area, the example providedinDhanasar,orthattheemploymentofeightworkersataprojectedmediansalaryof$61,800 would otherwise have substantial positive economic effects for the region.
The Petitioner also places great emphasis on the shortage of IT workers in the United States, particularlyintheareaof in whichhespecializes,andassertsthatbothhiswork and the work ofthe employees thathewill train will help to address this shortage. The record includes media and government reports which support the shortage of IT workers in general. However, as noted above, the first prong ofthe Dhanasar framework focuses on the Petitioner's specific proposed endeavor. TheevidencedoesnotshowthattheproposedemploymentofeightITworkerswouldhave broader implications in the IT industry.
Upon review, we agree with the Director that the Petitioner has not established that his proposed endeavor of starting an IT consulting firm is of national importance, and that he therefore has not met the first prong of the Dhanasar framework.
B. Well Positioned to Advance the Proposed Endeavor
In the second prong of the Dhanasar framework, we shift our focus from the proposed endeavor to the petitioner. The Director determined, based primarily on his review of two letters from the Petitioner's former colleagues atl lbank in Brazil, that the Petitioner's experience in software development projects for that employer made him well positioned to advance his proposed endeavor.
However, we note that the bulk ofthe proposed endeavor focuses not on the Petitioner's own software developmentactivities,butuponhiscreationofanewcompanywithemployeesengagedinthatwork. While we agree that his credentials and experience as a software developer are sufficient to allow him to continue to be employed in that field in the United States, which was the essence of his initial proposed endeavor, the record does not demonstrate that he is well-positioned to advance as an entrepreneur.
As noted above, the Dhanasar decision spelled out several factors which can be considered in determining whether a petitioner is well-positioned to advance their proposed endeavor, including severalwhicharepertinenttoentrepreneurialendeavors. Theseincludearecordofsuccessinsimilar efforts, any progress towards achieving the proposed endeavor, and the interest ofpotential customers, users, investors, or other relevant entities or individuals. In this case, the record lacks evidence which supportsanyofthesefactors. Specifically,althoughtheevidenceincludesthePetitioner'sresumeand several experience letters from former employers, there is no evidence that he has previously attempted orsucceededinstartinganewbusiness. Inaddition,therecordlacksdocumentationofanyprogress towards achieving this endeavor, which might include the establishment of the business as a legal entity, registration of the business, securing any necessary funding, renting or purchasing physical space for the business, and the hiring of employees and contractors. Further, there is no indication in the record that the Petitioner has successfully gathered interest from potential investors or customers.No interest from users, customers or investors While "we do not ... require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed," Dhanasar at 890, here the record does not show that the Petitioner has made any preparations for starting his new business beyond writing a business plan which includes more information about his achievements as a software developer than about the prospects ofhis proposed business. Accordingly, we disagree with the Director and conclude that the Petitioner has not established that he meets the second prong of the Dhanasar framework.
C. WhetheronBalanceitWouldbeintheNationalInteresttoGrantaWaiver
As discussed above, we conclude that the Petitioner has not met the first and second prongs of the Dhanasar framework, and he has therefore not established that he should be granted a national interest waiver as a matter of discretion. We therefore need not determine under the third prong whether on balance it would be in the national interest to grant a waiver of the job offer requirement of the requestedclassification. However,wewillbrieflynotethatthePetitioner'sargumentbaseduponthe labor shortage in the IT industry are not persuasive, as the purpose ofthe labor certification process is to identify jobs where there are no qualified, willing and available U.S. workers. Further, although the Petitioner argues that the labor certification process is lengthy and can cost companies money in terms of delays in hiring, he has not demonstrated that there is an urgent need for his services.No urgency shown
Conclusion
The Petitioner has established his eligibility as a member of the professions holding an advanced degree or equivalent. However, he has not shown that he is eligible for or otherwise merits a national interest waiver of the job offer requirement as a matter of discretion.
ORDER: The appeal is dismissed.