The Petitioner seeks second preference immigrant classification, 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 Texas 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 asserts 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 novo review, we will withdraw the Director's decision and remand the matter for further review of the record and issuance of a new decision.
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.
Section I 01 (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 10 l(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 demonstrate eligibility as an individual ofexceptional ability, a petitioner 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 2, grant a national interest waiver if the petitioner demonstrates: (1) that Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionary in nature).
I 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
The Petitioner's proposed endeavor is to be the chief executive officer "primarily responsible for coordinating the operational, commercial, and financial strategies of'' a company which distributes Iproducts. Upon review of the record, we withdraw the Director's conclusions that the Petitioner established that she is an advanced degree professional and well positioned to advance the proposed endeavor.
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. In addition to the definition of "advance degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at8 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 cunent or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty."
Second, the evaluator of the Petitioner's degree and experience states that the "evaluation relies upon the copies of the original documents of the diplomas, transcripts, and resume provided by" the certification.
First, the Petitioner has not established that she holds the equivalent of a U.S. bachelor's degree. example,thePetitionerhasnotdemonstratedthelengthofherbachelor'sdegreeprogram.Degree not shown to be a U.S. advanced degree equivalent Inaddition, although the Petitioner claimed to have submitted a copy of her transcript, the provided document appears to be a copy of course offerings. The Petitioner's name does not appear anywhere on the document, nor does it include dates of attendance or grades received.
Petitioner, with no mention that he reviewed any letters, as required by 8 C.F.R. § 204.5(k)(2). also unclear whether the evaluator reviewed the Petitioner's actual transcripts or only the submitted list of course offerings. Third,thePetitionerhasnotestablishedherfieldofstudy. Althoughthediplomaaccompanyingthe certified translation indicates that the Petitioner's degree is in "business administration,"the original document appears to indicate that the degree is in "administration," without any additional specialty. Neither the evaluator, nor the translator, provides any explanation for the discrepancy.
The Petitioner must resolve these discrepancies and ambiguities in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
If the Director determines that the Petitioner has sufficiently established that she holds the foreign equivalent of a U.S. bachelor's degree, the Director must then consider whether the submitted letters from current or former employer(s) demonstrate, at a minimum, five years of progressive post- baccalaureate experience in the specialty.
In addition, while we agree with the Director that the Petitioner has not established that she merits a national interest waiver, we must also agree with the Petitioner that the Director's decision does not In light of the above, we are remanding the petition for the Director to first determine whether the Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver cases. If the Director concludes that the Petitioner is qualified for the requested classification, he should then address whether the Petitioner established that a waiver ofthe required job offer, and thus of the labor certification, would be in the national interest.
ORDER: The matter is remanded for the entry of a new decision consistent with the foregoing analysis, which, if adverse, shall be certified to us for review.