The Petitioner, a data engineer and an analyst, seeks employment-based second preference (EB-2) 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 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 is eligible for or otherwise merits a national interest waiver as a matter of discretion. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 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. Section 203(b )(2)(B)(i) of the Act. An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. 8 C.F.R. § 204.5(k)(2). A U.S. baccalaureate degree or a foreign equivalent degree followed by five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. Id.
Profession is defined as one of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 1 as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2).
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having a degree of expertise significantly above that ordinarily encountered in the field.
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 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 discretion4
, 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.
Id.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range ofareas, 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. Id.
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether they are well positioned to advance the proposed endeavor, we consider factors including, but not limited to: their 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. Id. at 890. The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii).
available, the United States would still benefit from their contributions; and whether the national interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, establish that on balance, it would be beneficial to the United States to waive the requirements ofa job offer and thus ofa labor certification. Id. at 890-91.
Analysis
As indicated above, the 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) of the Act. The Director found the Petitioner has submitted evidence to establish that he is an alien of exceptional ability but did not determine whether the Petitioner qualifies for the EB-2 visa classification as an individual of exceptional ability. The Petitioner claimed qualification for the EB-2 visa classification as an advanced degree professional, and we agree because he possesses a foreign equivalent degree of a U.S. bachelor's degree in economics and at least five years of progressive work experience in the field ofhis endeavor after obtaining the degree. The remaining issue on appeal is whether the Petitioner is eligible or otherwise merits a waiver of that classification's job offer requirement. We conclude that he is not. The Director found that the Petitioner did not provide a detailed description of his proposed endeavor and concluded that the Petitioner did not provide sufficient evidence to demonstrate that his proposed endeavor has both substantial merit and national importance, that he is well positioned to advance the proposed endeavor, and 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.
On appeal, the Petitioner contends that he provided a detailed description of his proposed endeavor, and we agree. The record contains the Petitioner's proposed endeavor statement, a PowerPoint presentation on his proposed endeavor and business plan, and a business plan ofl Iall of which provide a detailed description of the Petitioner's proposed endeavor. The Petitioner proposed to develop an artificial intelligence-based health system to monitor, treat, and prevent major adverse health events, such as stroke, heart attacks, and other life-threatening health events for patients who suffer from obesity and obesity-derived disease. The Petitioner plans to establish a technology enterprise in Florida to develop I a comprehensive technology enabled health management platform that integrates wearable devices, mobile applications, and artificial intelligence algorithms. The platform will collect and analyze real-time health data, including physical activity, sleep patterns, heart rate, and nutrition. The artificial intelligence algorithms will process this data and provide personalized insights, recommendations, and immediate interventions to users whose lives are at risk, aiding in the preservation of life and overall good health and well-being. As such, we find the Petitioner has provided a detailed description of his proposed endeavor.
The Petitioner previously claimed that his proposed endeavor has both substantial merit and national importance because it will improve the U.S. healthcare system by reducing the prevalence of chronic diseases, morbidity, and mortality rates through an artificial intelligence-based health system to monitor, treat, and prevent major health events. To support substantial merit ofhis proposed endeavor, the Petitioner provided various articles, reports, and government initiatives, which support that p. 4 emerging technologies, such as artificial intelligence and machine learning, can help the healthcare system achieve financial sustainability and improve the quality of health through lower spending and superior care delivery. Accordingly, we determine that the Petitioner's proposed endeavor has substantial merit in science, technology, and health.
In addition, the Petitioner previously stated that he intends to advance technology-driven health systems using emerging technologies to prevent and treat obesity and related diseases, thus contributing to building a resilient, efficient, full coverage, and universal health coverage system for U.S. citizens while enhancing societal welfare, fostering economic growth, and advancing the nation's position in the global healthcare landscape. The Petitioner on appeal asserts that he provided 11 pieces of objective, documentary evidence with the initial filing speaking to the national importance and substantial merit ofhis proposed endeavor and additional 35 pieces of evidence from U.S. government and private sector sources speaking to the benefits ofdeveloping an artificial intelligence-based health system in response to a request for evidence. The Petitioner argues that the Director's failure to consider this evidence speaking to the national importance of his proposed endeavor was arbitrary exercise of discretion without a valid reasoning and that the Director's failure to discuss all elements of the evidence submitted was directly disadvantageous to the Petitioner and a significant defect in the decision.
Except where a different standard is specified by law, a petitioner must prove eligibility for the requested immigration benefit by a preponderance ofthe evidence. Matter ofChawathe, 25 I&N Dec. at 375-76. Under the preponderance ofthe evidence standard, the evidence must demonstrate that the petitioner's claim is "probably true." Id. at 376. We will examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. In this case, we have reviewed each piece of evidence, both individually and within the context of the totality of the evidence, and conclude that the Petitioner has not established by a preponderance of the evidence the national importance of his proposed endeavor for the reasons we will discuss below.
The Petitioner contends that the evidence submitted identifies his proposed endeavor is of national interest because the proposed endeavor directly addresses a critical situation in the United States and is the subject of national initiatives. He refers to various articles and reports relating to obesity, artificial intelligence, and machine learning. The articles and reports relating to obesity provide obesity facts, highlight the prevalence of obesity among adults and youth in the United States, discuss risks factors associated with obesity, consequences ofobesity, economic costs of obesity, and obesityrelated health care costs, and suggest effective ways to reduce obesity. The articles and reports relating to artificial intelligence and machine learning provide general information regarding artificial intelligence and machine learning, provide applications of artificial intelligence to obesity research, discuss machine learning approaches used to predict obesity, and examine obesity research and machine learning techniques for the prevention and treatment of obesity. The Petitioner also refers to several government initiatives, such as Healthy People 2030, the 2020-2025 Federal Health IT Strategic Plan, and the National Artificial Intelligence Act of2020. For example, Health People 2030 is an initiative from the U.S. Department of Health and Human Services to achieve health equity, eliminate disparities, and improve the health of all groups of people in the United States. The Federal Health IT Strategic Plan outlines steps to improve health through information technology. The p. 5 National Artificial Intelligence Act of 2020 ensures continued U.S. leadership in artificial intelligence research and development.
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 specific endeavor that the noncitizen proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. As such, the Petitioner must demonstrate by a preponderance ofthe evidence that his proposed endeavor - to establish a technology enterprise to develop a technology enabled health management platform, which will collect and analyze real-time health data, process this data, and provide personalized insights, recommendations, and immediate interventions to users whose lives are at risk - is of national importance. In Dhanasar, we indicated that we look for broader implications of the proposed endeavor and that an undertaking may have national importance, for example, because it has national or even global implications within a particular field. See id. at 889. We recognize that obesity is a public health issue that impacts more than 100 million adults and children in the United States, as reported in one of the articles submitted. We acknowledge that machine learning approach is a promising solution to early predictions of obesity and the risk of overweight because it can offer immediate and accurate identification of risk factors and condition likelihoods, as discussed in one of the reports submitted. We also acknowledge that artificial intelligence applications in healthcare provide many benefits. For example, they can reduce costs and administrative burden, connect patients to resources and care, inform population health management, improve diagnosis and early detection, and develop new drugs and therapeutics, as provided in one of the reports submitted.
However, the articles and reports do not explain, once the technology enabled health management platform is fully developed and implemented for use and becomes available for the public, how the Petitioner's proposed endeavor to develop the technology enabled health management platform offers benefits that extend beyond his customers who will wear his devices and access to the health management platform to impact the healthcare industry more broadly. While the government initiatives acknowledge the importance of research and development in artificial intelligence, promote health equity, and provide the benefits of information technology in healthcare, they do not indicate the government has an interest in the Petitioner's planned business activities to establish a technology enterprise and develop the technology enabled health management platform.No interest from users, customers or investors The Petitioner has not otherwise provided sufficient information and evidence to demonstrate the prospective impact of his proposed endeavor rises to the level ofnational importance. Without sufficient documentary evidence of their broader impact, the Petitioner's proposed business activities do not meet the national importance element of the first prong of the Dhanasar framework.No broader implications shown
As for the positive economic effects the Petitioner asserts his technology enterprise will offer, the Petitioner previously claimed that his proposed endeavor will promote U.S. medical technology leadership, advance the deployment of emerging technologies within the healthcare sector, improve the quality of healthcare, and drive efficiency to reduce obesity and obesity-related diseases. He further stated that the proposed endeavor will translate into savings for the healthcare sector as more individuals will have access to quality care to prevent or better treat obesity and obesity-related disease and it will boost productivity levels. He also asserted that by establishing his technology enterprise and advancing the development of emerging technologies in the healthcare sector, he will create well- p. 6 paid jobs in science, technology, engineering, or mathematics (STEM) fields, such as positions in artificial intelligence, machine learning, software development, device engineering, and medical research and development.
The record includes the business plan of I Iwhich provides detailed overview of the products and services to be provided by the Petitioner's technology enterprise. The products and services include advanced wearable devices, mobile application, lifesaving alerts, full integration with immediate healthcare attention, and monitoring and tracking ofmajor health conditions, telehealth and virtual consultations, artificial intelligence-powered recommendations, data analytics and artificial intelligence, and health education and engagement. According to the business plan, the Petitioner's technology enterprise expects to create 101 to 999 direct jobs in technology, health, engineering, finance, accounting, and other sectors. The business plan forecasts revenue of $1,000,000 and a net profit of $150,000 in year one and revenue of $48,000,000 and a net profit of $19,500,000 in year five. However, the Petitioner has not explained the bases for the income projections and staffing requirements in the business plan nor does the record contain sufficient evidence supporting these claims. The preponderance of the evidence standard requires that the evidence demonstrate that the petitioner's claim is probably true, where the determination of truth is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, truth is to be determined not by the quantity of evidence alone but by its quality. See id. Here, lack of supporting details detracts from the credibility and probative value of the business plan. Furthermore, even if all the projections in the business plan were realized, the record lacks sufficient evidence demonstrating that the Petitioner's technology enterprise will have an impact on the healthcare industry at a level commensurate with national importance.Plan or projections not corroborated In Dhanasar, we stated that an endeavor that has a 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. See Dhanasar, 26 I&N Dec. at 890. The Petitioner has not offered sufficient evidence that his technology enterprise will employ a significant population of workers in an economically depressed area or that his endeavor would offer a particular U.S. region or its population a substantial economic benefit through employment levels or business activity.Job creation or economic claims unsupported The Petitioner has not provided sufficient information and evidence to establish that his planned business activities will have substantial positive economic effects. Therefore, the record does not sufficiently demonstrate that the Petitioner's proposed endeavor is of national importance.
We recognize the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security. 5 With respect to the first prong, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance.6 While the Petitioner's proposed endeavor has substantial merit, the record does not sufficiently establish that his endeavor to develop the technology 5 See generally 6 USC1S Policy Manual F.5(D)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 6 Id. p. 7 enabled health management platform has sufficiently broad potential implications to demonstrate national importance.
The record also includes the Petitioner's diplomas, school transcripts, resume, thesis, membership identification card with the American Statistical Association, economist license in Colombia, recommendation or support letters from a former professor, former supervisors, and other individuals in his field, and letters of interest from an industrial engineer, a mental health therapist, a president of a company, and an insurance agent. The Petitioner's education, work experience, professional achievements, past contributions to his former employers, and the interest of potential investors or business partners are relevant under the second prong ofDhanasar to support the claim that that he is well positioned to advance the proposed endeavor. See Dhanasar, 26 I&N Dec. at 890. The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. See id. at 889.
Because the record does not sufficiently demonstrate the national importance of his proposed endeavor required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstrated eligibility for a national interest waiver. Therefore, further analysis ofhis eligibility under the second and third prongs outlined in Dhanasar would serve no meaningful purpose, and we will reserve these issues for future consideration should the need arise. 7
Conclusion
Although the Petitioner has shown that he is a member of the professions holding an advanced degree and that his proposed endeavor has substantial merit, he has not established by a preponderance ofthe evidence that his proposed endeavor is of national importance. Accordingly, we conclude that the Petitioner is ineligible for or otherwise merits a national interest waiver as a matter of discretion. ORDER: The appeal is dismissed.