The Petitioner, an international tax advisor, seeks second preference immigrant classification as a member of the professions holding an advanced degree and 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).
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree, but that he had not established 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 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. 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 p. 2 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.
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 o f 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 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.
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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming 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 too btain a labor ce1iification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 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 Director found that the Petitioner qualifies as a member of the professions holding an advanced degree. TheremainingissuetobedeterminediswhetherthePetitionerhasestablishedthatawaiverof therequirementofajoboffer,andthusalaborcertification,wouldbeinthenationalinterest. Forthe reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated eligibility under the first prong of the Dhanasar analytical framework.
The first prong relates to substantial merit and national importance ofthe specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a statement indicating: to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
I intend to continue my career as an International Tax Advisor, helping multinational U.S. companies, especially those companies moving into the Brazilian market. As an International Tax Advisor with a tax law and tax consultancy background, I will help business to detect problems, provide solutions, and optimize business results by educating executives in leading positions about the complexities of doing business in Brazil and Latin America. I will be able to utilize my solid experience gained in over 20 years, having worked as a Tax Advisor in Brazil.
My presence in the U.S. will provide support to businesses moving into the Brazilian market, assisting them to navigate the complex business environment and avoid unnecessary fines and fees arising out ofnon-compliance with the complex tax, business, andlaborrelations.... MycareerplanintheUnitedStatesistoworkforandse1veasa consultant and advisor for multinational companies doing business or planning on doing business in Brazil and Latin America.
Since 2010, I have worked atl linBrazil and the United States, holding the positions as Tax Executive Senior Manager and Senior Tax Manager Brazil Desk LATAM South.
[A]s an International Tax Advisor, I will be able to provide a wide array of services in the U.S., contributing directly to facilitate U.S. companies to generate substantial revenues p. 4 from the Brazilian market; while being fully compliant with the highly complex tax and business laws of the countty. In response to the Director's request for evidence (RFE), the Petitioner offered an updated statement indicating: I will consult U.S. and foreign companies and individuals on important issues relating to cross-border activities, such as I) tax implications and tax treaties, 2) differing legal systems, 3) dispute resolution, 4) diplomacy, and 5) culture awareness.
I intend to open a business in the U.S. to can-y out consultations for my clients, which, by my goals and plans, should generate at least 2 more jobs. Conservatively, at least 8 to 10 more jobs will be needed, to fulfill my 3-4yearplan by working in the U.S.
My plan is to work with U.S. companies that have a high volume ofbusiness with Brazil in order to contribute my Brazilian legal knowledge and my analytical and consulting skills to help their businesses avoid unnecessary risks, comply with Brazilian tax law and set to correct tone o f dialogue with Brazilian authorities.
The Petitioner maintains on appeal:
[A]s a well-rounded legal counsel and a tax law specialist who possesses an intimate knowledge o f the business environment and complex legal landscape in Brazil, and who is uniquely well-positioned to guide companies that desire to engage in cross-border transactions and foreign investment-there is no doubt that [his] proposed endeavor to advise U.S. companies doing business or planning to do business in Brazil is not only meritorious, but nationally important, when considered how much benefit he can generate to the economy through his in depth expertise in the fields o f business law, corporate law, tax law, and environmental law in Brazil.
The record includes documentation relating to United States and international tax laws, including Brazil; the complexities of tax laws and codes; the impact of tax reform on the accounting industty; the global outlook of tax policy; the effects of foreign direct investment on the U.S. economy; strategies for companies conducting international business; and implications of investment in Latin American and Brazilian companies. As such, the record shows that the Petitioner's proposed work as an international tax advisor has substantial merit.
On appeal, the Petitioner contends that: his "proposed endeavor is unquestionably of national importance, given the significant impact to the United States on international trade with Latin American countries, and particularly Brazil," "the legal industry plays an integral part in the U.S economy," "international real estate is moving into the mainstream," and "the trend toward greater cross-bordermovementofrealestatecapital-specificallyintheU.S.-is asunmistakableasthegrowing p. 5 volume of world trade." 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 "thespecificendeavorthattheforeignnationalproposestoundertake." SeeDhanasar,26I&NDec. at889. Here,thePetitionermustdemonstratethenationalimportanceofhisprovidinginternational tax law services rather than the national importance of the trade, legal, tax, and real estate fields or industries. In Dhanasar, we further noted that "we look for broader implications" of the proposed endeavorandthat"[a]nundertakingmayhavenationalimportanceforexample,becauseithasnational 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.
In his appeal brief, the Petitioner emphasizes his "over 21 years ofprogressive experience in the field of tax law, handling a variety of complex business legal matters for multinational enterprises, and devising highly sophisticated solutions in such efforts." The Petitioner's experience, education, and training in his field relates to the second prong o f the Dhanasar framework , which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that he proposes to undertake has national importance under Dhanasar's first prong.
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement we look to evidence documenting the "potential prospective impact" ofhis work. As indicated above, the Petitioner initially proposed to provide consulting and advising services for multinational companies. In response to the Director's RFE, the Petitioner then claimed that he intended to open a business to carry out consultations with his clients. Although the Petitioner's statements reflect his intention to offer advising and consulting services in international tax law, he has not submitted sufficient, specific information and evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of national importance. 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 find the record does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond his potential customers, either as a private contractor or as part ofhis business, to impact the tax field or U.S. economy more broadly at a level commensurate with national importance.No interest from users, customers or investors
Furthennore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake offers substantial positive economic effects for our nation or has significant potential to employ U.S. workers.Job creation or economic claims unsupported He did not, for instance, show any credible business revenue projections to substantiate that his company's future business activity stands to provide substantial economic benefits to specific 4 regionsortheUnitedStatesascontemplatedbyDhanasar,ld.at890. Inaddition,althoughheclaimed that his business would initially require two more jobs and then would require eight to ten more jobs in three to four years, the Petitioner has not offered evidence, for instance, that the unidentified area where his company would operate is economically depressed, that he would utilize a significant population of workers in that area, or that his endeavor would offer the region or its population a substantial economicbenefitthroughemploymentlevelsorbusinessactivity. NorhasthePetitionerestablished that any increases in employment or investment attributable to his company's operations stand to The Petitioner's statementdoes not identify where his business would be located. p. 6 substantially affect economic activity or tax revenue in a state, region, or nationally. Accordingly, the Petitioner'sproposed workdoes notmeetthe firstprongofthe Dhanasarframework.
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 inDhanasar, therefore, would serve no meaningful purpose.
Conclusion
As thePetitionerhasnotmettherequisitefirstprongoftheDhanasaranalyticalframeworl<:,weconclude that he has not demonstrated that he is eligible for or otherwise merits a national interest waiver as a matterofdiscretion. Theappealwillbedismissedfortheabovestatedreasons,witheachconsidered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.