The Petitioner, a biomedical materials developer, seeks second preference immigrant classification as a member of the professions holding an advanced degree or 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). 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. Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016).
The Director ofthe Texas Service Center denied the Form I-140, Immigrant Petition for Alien Worker, and a subsequent motion, concluding that the Petitioner had not established he qualified for classification either as a member of the professions holding an advanced degree or as an individual of exceptional ability.
The Petitioner appealed the matter to us, and we dismissed the appeal. on combined motions to reopen and reconsider. With the motions, the Petitioner submits additional documentation and a brief asserting that he is eligible for the EB-2 classification and for a national interest waiver.
Upon de novo review, we will remand the matter to the Director for further action and consideration.
Law
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen isbasedondocumentaryevidenceofnewfacts. Therequirementsofamotiontoreconsiderarelocated at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. § 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.
See Matter ofH-P-. ID# 1730648 (AAO Nov. 8, 2018).
The matter is now before us
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 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) National interest waiver. ... [T]he Attorney General may, when the Attorney 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 definition:
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive 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.
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. established, USCIS may, as a matter of discretion, grant a national interest waiver when the below prongs are met. In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after EB-2 eligibility has been p. 3 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.
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 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 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 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 to waive the requirements of a job offer and thus of a labor certification.
Analysis
A. Member of the Professions Holding an Advanced Degree
The record includes the Petitioner's degree (August 1999) from I Korea and an academic credentials evaluation from I aforementioned degree is the foreign equivalent of bachelor's degree from an accredited institution of higher education in the United States. The Petitioner also previously submitted two August 2017 "Certificate(s) of Career" from,___ _ _ _ _ _ _ --,-__.. andl I. that list his work experience at those companies.
In our previous decision, we concluded that the aforementioned career certificates did not offer sufficient information to demonstrate that the Petitioner has at least five years of progressive post- baccalaureate experience in biomedical materials engineering and alloy development to constitute the equivalent to an advanced degree in that specialty.Five years of progressive experience not documented See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. § 204.5(k)(3)(i)(B).
With the motion, the Petitioner presents two new "Certificate(s) of Career" f r o m ~ - - - - - - ~ I l and I Ilisting the specific duties he performed for those companies. In addition, these updated certificates indicate how the Petitioner divided his time among various job See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
IUniversity in South Iindicating that the p. 4 responsibilities and specify the amount oftime he devoted to biomedical materials engineering and alloX development. We find that these certificates froml Iandl J D Offer sufficient information to demonstrate that the Petitioner has at least five y._e_a_r_s_o_f_p_ro_g_r_e_s-si_v_.e post-baccalaureate experience in biomedical materials engineering and alloy development to constitute the equivalent to an advanced degree in that specialty. Accordingly, the Petitoner has established that he qualifies for classification as a member of the professions holding an advanced B. National Interest Waiver
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, is in the national interest. Because the Director's decisions did not consider the Petitoner' s evidence and arguments relating to Dhanasar' s three-part analytical framework, we are remanding for the Director to analyze that documenation and make a determination as to whether We are therefore remanding the petition for the Director to apply the Dhanasar analytical framework to make a determination as to whether the Petitioner has established that a waiver of the requirement of ajoboffer,andthusalaborcertification,wouldbeinthenationalinterest. Invisapetitionproceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012).
ORDER: The motion is granted, and 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.
Cite as Matter ofH-P-, ID# 3606957 (AAO June 25, 2019) degree. the Petitioner has demonstrated eligibility for the benefit sought.
Conclusion
Because the Petitioner qualifies for the underlying visa classification as a member ofthe professions holding an advanced degree, we need not consider whether the record establishes his eligibility as an individual of exceptional ability.
We note that the Director's October 2017 decision stated: "Since [the Petitioner] does not qualify for the [EB-2] classification, it cannot be concluded that he is well positioned to advance the endeavor." However, as discussed earlier, the analysis ofevidence under any ofthe prongs set forth in the Dhanasar analytical framework is a separate determination from whether the Petitioner qualifies for the underlying EB-2 visa classification.