The Petitioner, a micropigmentation professional, seeks second preference immigrant classification 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 Texas Service Center denied the petition, concluding that the Petitioner had not established her eligibility as an individual of exceptional ability and that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest.
On appeal, the Petitioner submits additional documentation and a brief asserting that she is eligible as an individual of exceptional ability and 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 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.
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 10l(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, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of exceptional 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 interesi" 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 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 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. Inperf01ming 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 toobtain 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 wan-ant 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 Because she has not indicated or established that she qualifies as a member ofthe professions holding an advanced degree, the Petitioner must meet at least three of the regulatory criteria for classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying the petition, the Director determined that the Petitioner fulfilled only one of the regulatory criteria, a license to practice the profession at 8 C.F.R. § 204.5(k)(3)(ii)(C). On appeal, the Petitioner maintains that she satisfies two additional criteria. After reviewing the evidence, we conclude that the record does not support a finding of her eligibility for at least three criteria. to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
An official academic record showing that the alien has a degree, diploma, certificate, or similar award fi'om a college, university, school, or other institution o f learning relatingtotheareaofexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(A).
The Petitioner argues:
[She] has provided a certificate from the ~ - - - - - - - ~ demonstrate ding [sic] that on September 27, 2017 she completed a training course titled "Laser Pigment Removal." Also attached is an additional certificate from I J twith photo of the [Petitioner] and her professor documenting that she completed a course in "Formacao de Micropigmentadores." Both certificates are directly related to her area of exceptionalability.... Thesetrainingcertificationsdonotcomewitha[sic]transcripts or syllabus[es]. The certificate(s) themselves are proofthat the [Petitioner] completed the training and so state that the training is concluded. The standardofproofis preponderance of the evidence and the attached certificates and those contained in the record from the .___ _ _ _ _ _ _ ~and.___ _ _ _ _ _ _ _ _ _ _ ~from 2017 and2018 establish that it is more likely than not that the [Petitioner] completed these trainings.
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires"[a]n official academic record." however, did not establish how the presented ce1iificates, as well as the photograph mentioned above, represent "official academic record[s]" consistent with this regulatory criterion. Fmihermore, the Petitioner did not corroborate her assertions that "training certificates do not come with []transcripts or syllabus[es]." Besides the certificates, the Petitioner did not provide supporting evidence from the organizations reflecting official academic records. In addition, the Petitioner did not submit evidence demonstratingthatthe I I01.___ _ _ _ _ _ _ _ _ _ ____. qualifies as "a college, university, school, or other institution of learning" pursuant to this regulatory criterion.
Without evidence of official academic records from a college, university, school, or other institution of learning, the Petitioner has not sufficiently shown that she meets this criterion.
Evidenceo.fmembershipinprofessionalassociations. 8C.F.R.§204.5(k)(3)(ii)(E).
ThePetitionercontendsthathermembershipwithth e ~ ----------------~ ~ -------------' meets this criterion. As evidence, the Petitioner submitted a photographofamembershipcardindicatingvalidityuntilJanuary2019. Therecordalsocontainsa document, dated July 2018, from the I Ipresident declaring the Petitioner's approval of Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual.
at the time of filing through her membership withl Moreover, the Petitioner did not offer supporting evidence establishing thatI Ihas a membership body comprised ofindividuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization otherwise The Petitioner also argues to meet this criterion based on membership with thd.___ _ _ _ _ _ _ _ __. I Iand submits a photograph of a membership card. However, as the Petitioner did not make this claim of eligibility and submit this document before the D i r e c t o r , e i t h e r a t t h e t i m e s h e f i l e d t h e p e t i t i o n o r i n r e s p o n s e to t h e D i r e c t o r ' s n o t i c e o f i n t e n t to d e n y (NOID),wewillnotconsiderthisclaimanddocumentinouradjudicationofthisappeal. SeeMatter o__fSoriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing that if "if the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the deniaL we will not consider evidence submitted on appeal for any purpose" and that "we will adjudicate the appeal based on the record of proceedings" before the Chief); see also Matter ofObaigbena, 19 I&N Accordingly, the Petitioner did not demonstrate that she fulfills this criterion.Evidence submitted too late
Conclusion
The Petitioner did not establish that she satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3 )(ii). As a result, we need not provide a final merits determination to evaluate whether the Petitioner has constitutes a professional association.
Regardless, besides that the membership card does not show her dates of Dec. 533 (BIA 1988).