The Petitioner 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 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 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 she 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 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) 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 offerorforthe 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 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 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 concluded that the Petitioner qualifies as a member of the professions holding an advanceddegree. TheremainingissuetobedeterminediswhetherthePetitionerhasestablishedthat 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 eligibility under the first prong of the Dhanasar analytical framework.
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a statement indicating that she "seek[s] employment as [an] entrepreneur and expert in nutrition in the field of homecare for the elderly." In addition, the Petitioner claimed that she "intend[ed] to develop and open am [sic] innovative home care agency to offer several home health care services to seniors that alleviate the stress and difficulty in maintainingpropernutrition." In response to the Director's noticeofintentto deny(NOID), the Petitioner asserted that she "intends to combine her skills in dentistry, overall extensive industty experience and [her] deep understanding of nutrition and its effects on dental and overall health" and "intends to develop and open an innovative home care agency to offer several home health care services to seniors that alleviate the stress and difficulty in maintaining proper nutrition."
In denying the petition, the Director stated: to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
The evidence submitted is insufficient to show the petitioner's endeavor has substantial meritbecauseshedidnotsubmitasufficientlydetaileddescriptionofherendeavor. While providing nutrition and food services to the elderly may generally have substantial merit, the petitioner must establish how her particular endeavor has substantial merit. The petitioner has not provided sufficient evidence ofher particular endeavor to establish its meritortoshowthatithassubstantialmerit. Additionally,thepetitionerdidnotsubmit any documentary evidence to support the facts and data she discussed in her personal statementregardingthe nutrition and the need for food assistance in the elderlypopulation. In response to the NOID, counsel indicated in the cover letter that nutrition is important to leading a healthy lifestyle and cited statistics concerning obesity and discussed other risk factors o f unhealthy eating habits such as heart disease, hypertension, type 2 diabetes, osteoporosis, and certain types of cancer. Counsel indicated the link between good nutrition and healthy weight, reduced chronic disease risk, and overall health is too important to ignore. Counsel indicated that the Mayo Clinic has stated that improper nutrition can contribute to several health issues in seniors. However, counsel did not provide any evidence to support these statistics or statements . . . .
Additionally, [as] the petitioner has not submitted a sufficiently detailed description ofher proposed endeavor or sufficient documentary evidence to demonstrate her proposed p. 4 endeavorwill have potential prospective impact, she has not established that her particular endeavor has national importance . . . . We adopt and affinn the Director's decision with the comments below. See Matter o fP. Singh, Attorney, 26 l&N Dec. 623 (BIA 2015)(citingMatterofBurbano,20 l&N Dec. 872, 874 (BIA 1994); see also st or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case).
On appeal, the Petitioner practically makes the same arguments that she made in response to the Director's NOID without specifically identifying any erroneous conclusion of law or statement of fact in the Director'sdecision. Infact,herbriefisalmostverbatimtoherNOIDresponsewithoutaddressingthe Director'sfindings. Furthermore,therecordcontainsnosupportingevidencetocorroborateanyofthe Petitioner'sstatementsregardingherproposedevidence. Thus,thePetitionerdidnotdemonstratethat her proposed endeavor has both substantial merit and national importance.
As it specifically relates to 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 l&N Dec. at 889. Here, the Petitioner must demonstrate the national importance ofher providing nutritional and home healthcare services rather than the national importance ofgood nutrition and home healthcare. 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 economicallydepressedarea,forinstance,maywellbeunderstoodtohavenationalimportance." 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" of her work. Besides her unsupported statements, she has not offered sufficient, specific infonnation and evidence to demonstrate that the prospective impact of her proposed endeavor rises to the level of national importance.Claims not backed by documents 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, the record does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond her agency or potential clients, to impact the dental, nutrition, or home healthcare field or industry or the U.S. economy more broadly at a level commensurate with national importance.No interest from users, customers or investors
Furthermore, the Petitioner has not established that the specific endeavor she proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effectsforournation.Job creation or economic claims unsupported WithoutsufficientinformationorevidenceregardinganyprojectedU.S.economic impact or job creation attributable to her future work, the record does not show that the benefits to the U.S. regional or national economy resulting from the Petitioner's dental, nutrition, or home healthcare serviceswouldreachthelevelof"substantialpositiveeconomiceffects"contemplatedbyDhanasar. Id.
Ch en v. INS, 87 F.3d 5, 7-8 (1 judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative p. 5 at890. Accordingly,thePetitioner'sproposedendeavordoesnotmeetthefirstprongoftheDhanasar framework. Because the documentation in the record does not establish the national importance of her proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second and third prongs outlined inDhanasar, therefore, would serve no meaningful purpose.
Conclusion
As thePetitionerhasnotmettherequisitefirstprongoftheDhanasaranalyticalframeworlc,weconclude that she has not demonstrated that she is eligible for or otherwise merits a national interest waiver as amatterofdiscretion. Theappealwillbedismissedfortheabovestatedreasons,witheachconsidered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.