The Petitioner, a human resources (HR) manager, seeks classification as a member ofthe professions holding an advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). ThePetitioneralsoseeksanationalinterestwaiverofthejobofferrequirement that is attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act. U.S. CitizenshipandImmigrationServices(USCIS) maygrantthis discretionarywaiveroftherequiredjob offer, and thus of a labor certification, when it is in the national interest to do so.
The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualifies for a national interest waiver. The matter is now before us on appeal. 8C.F.R.§103.3.
T h e P e t i t i o n e r b e a r s t h e b u r d e n o f p r o o f to d e m o n s t r a t e e l i g i b i l i t y b y a p r e p o n d e r a n c e o f t h e e v i d e n c e . Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 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 ofexceptionalabilityinthesciences,arts,orbusiness. Section203(b)(2)(B)(i)oftheAct.
An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent ofa master's degree. 8 C.F.R. § 204.5(k)(2).
Once a petitioner demonstrates EB-2 eligibility, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national p. 2 interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion, interest waiver if the petitioner demonstrates that: grant a national
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Advanced Degree Professional
The Petitioner worked in Brazil as a traffic psychologist and as an HR analyst until she entered the United States in May 2015. She was still in the United States when she filed the petition on December 2019. Shortly after she filed the petition, the Petitioner established a limited liability company in Florida, intending to provide human resources management services to small businesses.
In the denial notice, the Director only addressed the national interest waiver, and not the underlying questionofwhetherthePetitionerqualifiesfortheunderlyingEB-2classification. Forthereasons below, we conclude that the Petitioner has not established eligibility for the classification.
The Petitioner does not claim to qualify for classification as an individual of exceptional ability, and she does not claim to hold an actual advanced degree. Instead, when she filed the petition, she asserted that she is a member of the professions who holds the equivalent of a master's degree in the form ofa bachelor's degree and five years of progressive post-baccalaureate experience. The record, however, does not support this assertion.
The Petitioner earned a degree in psychology f r o m in Brazil in June 2009. An evaluation in the record indicates that this degree is equivalent to a baccalaureate degree from a U.S. institution. The Petitioner entered the United States in May 2015 as a B-2 nonimmigrant visitor, and the record does not show that she was ever authorized to work in 1he United States before she filed the petition in December 2019. Therefore, it appears that the Petitioner had slightly less than six years in Brazil, from June 2009 to May 2015, to accumulate five years of progressive post-baccalaureate experience in the specialty ofHR management. The Petitioner claimed "more than 10 years ofexperience in the field," but she did not document that much experience. The Petitioner's resume lists the following periods of employment in Brazil, corroborated by employers' letters:
- HR Trainee and Analyst, 2/5/2007-8/5/2010 (42 months);
- Traffic Psychologist, 8/9/2010-3/2/2012 (less than 19 months); and
- HR Analyst, 10/15/2012-8/25/2014 (over 22 months).
The above periods of employment add up to about six years and nine months, but they do not amount to six years and nine months of progressive post-baccalaureate experience in the specialty of HR management in which the Petitioner seeks employment.Five years of progressive experience not documented
Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in na ture).
The Petitioner has not shown that her work as a traffic psychologist at a psychology clinic from 2010 to 2012 was in the specialty ofHR management. Rather, her employer's letter indicates the Petitioner "performed psychological evaluation ... in order to analyze the cognitive capacity, attention deficit Even if the Petitioner had shown that her work at the psychology clinic constitutes experience in the specialty of HR management, she has not documented at least five years of post-baccalaureate experience. ThePetitioner'sfirsttwoyearsandfourmonthsofemployment,fromFebruary2007to June 2009, predate completion ofher degree and therefore this experience was not post-baccalaureate.
The Petitioner has documented only about four years and five months of post-baccalaureate employment experience, fromJune2009to March2012 and fromOctober2012 to August 2014. Only about three years of that post-baccalaureate experience was demonstrably in HR rather than psychology. The Petitioner has not established the minimum of five years of progressive post- baccalaureate experience in the specialty required by 8 C.F.R. § 204.5(k)(3)(i)(B).
Thisdetennination,byitself,precludesapprovalofthepetition. ButbecausetheDirector'sdecision did not address this issue, we will also discuss the stated grounds for denial of the petition below.
Nationalinterestwaiver
Theissue beforeusonappealiswhetherthePetitionerhasestablishedthatawaiveroftherequirement of a job offer, and thus a labor ce1iification, would be in the national interest.
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 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. See MatterofDhanasar, 26 I&N Dec. at 889.
When she filed the petition, the Petitioner stated that her company "will participate in HR consulting services for small and medium sized enterprises" and "develop a strategy for the Recruitment and Selection sector." The Petitioner asserted that her proposed endeavor is of national importance because"[e]xperienced HR professionals ... are vital to the overall growth and development of small businesses in the U.S.," which makeup "99.9% ofall United States Businesses."
The Director issued a notice of intentto deny the petition, statingthatthe Petitioner had not established that her proposed endeavor has the broad implications described in Dhanasar. In response, the Petitioner stated that her "proposed endeavor has significant potential to employ U.S. workers," because her business plan projects a staffof 12 employees by the fifth year. The Petitioner also states that she "will ... help other businesses hire more employees," by "ensur[ing] that businesses are able to fill their vacant positions" and "improv[ing] employee retention." The Petitioner submitted articles about the HR field, small businesses, labor shortages, and related topics.
The Petitioner submitted information explaining how a degree in psychology can be helpful in the HR field. The relevance of a psychology degree to HR management, however, does not establish thatpsychology and HR management are the same "specialty"as 8 C.F.R. § 204.5(k)(3)(i)(B)requires. and psychomotricity offirst-time applicants, renewal and traffic instructors."
In determining whether the proposed endeavor has national importance, we consider its potential prospectiveimpact. AnendeavorthathassignificantpotentialtoemployU.S.workersorhasother substantial positive economic effects, particularly in an economically depressed area, for instance, maywellbeunderstoodtohavenationalimportance. MatterofDhanasar,26I&NDec.889-890.
General infmmation about the Petitioner's occupation and statistics about small businesses and labor shmiages does not establish the national impmiance of the Petitioner's specific proposed endeavor. For instance, the Petitioner's evidence indicates that there are more than 30 million small businesses in the United States, but only a few of those businesses would be clients of the Petitioner's company. The record indicates there are about 300,000 HR managers in the United States. Their aggregate impact does not establish the national importance ofthe proposed endeavor.
We must consider the proportional impact of the Petitioner's work in particular. By comparison, in Dhanasar we acknowledged the petitioner's intention to teach engineering classes, but we concluded that the petitioner had not shown that his teaching work would "impact the field . . . more broadly." Id. at 893.
Ultimately, the issue is not whether the Petitioner's clients would benefit from her services. The issue is whether the proposed endeavor has "broader implications" with "substantial positive economic effects" as contemplated by Dhanasar. Id. at 889-90. Limited local effects may be of great benefit to the Petitioner's own clients, but still lack national importance. For example, the Petitioner asserted that "the impact she will have on work culture and employee satisfaction will continue to shift how companies perceive their actions," but the Petitioner did not show how her work will have this effect outside of the limited number of companies that engage her services.
The Director denied the petition, stating that the Petitioner did not "explain and demonstrate how [her] proposed endeavor will extend beyond the organization and its clients to impact the industry or field more broadly."
On appeal, the Petitioner asserts that she had established that her proposed endeavor "will have a direct, critical effect on the Human Resources Industry by revolutionizing how businesses handle internal affairs, the interview process, and retention," because her "background in psychology allows her to deeply understand human behaviors and interactions." The Petitioner had previously submitted evidenceindicatingthatitisnotunusualforHRmanagerstohaveabackgroundinpsychology. For instance,shehadsubmittedaprintoutfromIndeed.comentitled'"FAQ: HumanResourcesJobsWith a Psychology Degree." The suitability of the Petitioner's degree for the proposed endeavor would be considered in the context ofthe second Dhanasar prong, concerning whether she is well-positioned to advance the proposed endeavor.
The Petitioner's business plan specifies that the Petitioner is not proposing practices or policies that canbewidelyimplementedbyalargenumberofbusinesses. Rather,hercompany"willprovideaset of comprehensive services specifically adapted to each client's specific business needs." Individually tailored services may help the Petitioner to serve the specific needs of each client, but, by nature, they do not represent broadly-applicable measures that a wide range of employers can readily adopt. Also, p. 5 the Petitioner has not explained how her methods would be disseminated so widely that they would have a nationally significant economic impact.Job creation or economic claims unsupported
The Petitioner notes that USCIS has updated its guidance for entrepreneurs seeking the national interest waiver. The Petitioner does not quote from this guidance. The updated policy does not establishadifferentevidentiarystandardforentrepreneurs. Rather,itacknowledgesthat"[t]heremay be unique aspects ofevidence submitted by an entrepreneurial petitioner," which adjudicators should take into account while still adhering to the Dhanasar framework. See generally 6 USCIS Policy Manual, F.5(D)(4), https://www.uscis.gov/policy-manual.
The Petitioner states that USCIS did not give enough weight to an "Expert Letter" from a professor at I Iuniversity. USCIS may rely on such letters in its discretion, but USCIS is ultimately responsible for making the final determination regarding an individual's eligibility for the benefit sought. See Matter ofCaron International, 19 I&N Dec. 791, 795 (Comm'r 1988). The letter does not introduce new facts into the record; rather, the professor described record evidence and concluded that the Petitioner is eligible for the national interest waiver. The discussion of national importance includes general, industry-wide statistics, descriptions of HR procedures, and an overview of the proposed endeavor, without explaining how the benefit from the Petitioner's work would extend beyond her own clients to reach national importance and meet the requirements of the first Dhanasar prong.Proposed endeavor too vague
The Petitioner asserts that her business plan outlined the economic benefit from her proposed endeavor. In terms of job creation, the Petitioner's business plan cites "national job multipliers published by the Econom[ic] Policy Institute" (EPI), indicating that "100 direct jobs in the Management, scientific, and technical consulting services ... generate a total of 207.6 indirectjobs." Citing these figures, the business plan states: "Since [the Petitioner] will create 12 direct jobs by the end of 2026/27, the total indirect jobs . . . would reach 24." Separately from the EPI figures, the business plan indicates that the Regional Input-Output Modeling System (RIMS TT) multipliers for "Management consulting services" in Florida project "a final-demand impact in employment, equivalent to 233 jobs in Year 7." The Petitioner did not submit the multiplier evidence itself or show thatherproposedendeavorfallsunderthecategoriesnamed. ThePetitionerdidnotaddressorexplain the significant discrepancy between the EPI and RIMS II figures. Also, modeled projections of indirect jobs do not show that the proposed endeavor itself "has significant potential to employ U.S. workers" as the Petitioner asserts, because the indirectjobs would be outside the Petitioner's company.
We agree with the Director's conclusion that the Petitioner has not met her burden to establish the national importance ofher proposed endeavor.
Conclusion
The Petitioner has not met the required "national importance" element of the first prong of the Dhanasar analytical framework. We therefore conclude as a matter of discretion that she has not established eligibility for a national interest waiver. Also, as noted above, the Petitioner has not established eligibility for the underlying EB-2 classification. Because these issues determine the outcome of the Petitioner's appeal, we reserve the appellate arguments regarding the remaining issue ofthethirdDhanasarprong. SeeINSv.Bagamasbad,429U.S.24,25(1976)("courtsandagencies p. 6 are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
ORDER: The appeal is dismissed.