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 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 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 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 to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 8 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 current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty."
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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 p. 3 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 2, 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. See Id. at 888-91, for elaboration on these three prongs.
Analysis
A. Eligibility for the Requested Classification
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. For the reasons discussed below, we withdraw the Director's conclusion that the Petitioner has established that she is an advanced degree professional.
The record includes a copy of her "Licenciado em Letras" and transcript f r o m _ _ _ _ _ _ _ in Brazil, along with an "Evaluation of Training, Education, and Experience" (evaluation), which ultimately concluded that:
Considering that a Bachelor's Degree, followed by more than five years of full-time work experience in the field of Education and Management is equivalent to a Master of Arts in Education-Major in Management it is my expe1iopinion that [the Petitioner], with a Bachelor's degree in Letters and 19 years of experience, has no less than the equivalent of a Master of Arts in Education - Major in Management.
However, based upon the information in the transcript, the Petitioner's program began in 1998 and ended in 2000. In other words, it appears to have been a three-year program. According to the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE), "[t]he 2- to 3-year Titulo de Licenciado (Licenciatura) represents attainment of a level of education comparable to 2 to 3 years of university study in the In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of Transportation, 22 T&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDO1).
S e e a l s o P o u r s i n a v. U S C I S , 9 3 6 F . 3 d 8 6 8 , 2 0 1 9 W L 4 0 5 1 5 9 3 ( 9 t h C i r . 2 0 1 9 ) ( f i n d i n g U S C T S ' d e c i s i o n t o g r a n t o r d e n y a na tionalinterest waiver to be discretionary in nature).
WeconsiderEDGEtobeareliablesourceofinformationaboutforeigncredentialequivalencies. SeeCon/IuenceInfem., Inc. v. Holder, CivilNo. 08-2665 (DSD-JJG),2009 WL 825793 (D.Minn.Mar. 27,2009); Tisco Group.Inc. v. Napolitano, No. 09-cv-l 0072, 2010WL3464314(E.D. Mich. Aug. 30, 20 l0);SunshineRehabServices, Inc. No. 09-13605, 2010WL 3325442(£.D. Mich. Aug. 20, 2010).Seealso Viraj, LLC v. Holder, No. 2: 12-CV-00127-RWS, 2013 WL 1943431 (N.D. Ga.May 18,2013).
See https://www.aacrao.org/edge/country/credentials/credential/brazil/titulo-de-licenciado-(licentiate) (last accessed Mar.14,2022).
United States. Credit may be awarded on a course-by-course basis." to be a member of AACRAO, he fails to address not only the length of the Petitioner's program, but Although the evaluator claims p. 4 also the discrepancies between EDGE's stated equivalency and his own conclusion that the In addition, although the evaluator provided a conclusionregardingthe combination o f the Petitioner's education and professional experience, he does not claim to have reviewed any employment letters to The Petitioner must resolve the above inconsistencies with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted insupportoftherequestedimmigrationbenefit. Id.
In light of the above, the Director should determine anew whether the Petitioner has sufficiently demonstrated that she holds the foreign equivalent of a U.S. bachelor's degree as required by the regulations at 8 C.F.R. § 204.5(k)(2) and (3)(i)(B). If the Director dete1mines that the Petitioner's three-year "licenciado" is the foreign equivalent o f a U.S. bachelor's degree, they should then consider whether she has established that she has at least five years of post-baccalaureate experience as an educationadministrator. Wenote,forexample,thatnotonlyhasthePetitionerheldthepositionsof administrative assistant and commercial manager for example, but the letters do not indicate the number of hours the Petitioner worked per week.
B. DhanasarAnalysis
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national proposes to undertake." On the Form I-140, Immigrant Petition for Alien Worker, the Petitioner provided the following information:
Petitioner's "licenciado" is the foreign equivalent of a U.S. bachelor's degree. establish the Petitioner's work history or experience, as required by 8 C.F.R. § 204.5 (k)(3 )(i)(B). would also note that the basis for his statement that the Petitioner "served in positions of increasing professional responsibility and sophistication, together with peers, under the supervision ofmanagers, at a level of employment commensurate with Master's level training" has not been established.
Part 5 - Additional Information About the Petitioner Section 11. Occupation: Education Administrator
Part 6 - Basic Information About the Proposed Employment Section 1. Job Title: Education Administrator
Section 2. SOC Code: 11-9032
We may, in our discretion, useanevaluationofa person's foreign education as anadvisoryopinion. Matter of Sea,Inc., 19T&NDec.817,820(Comm'r1988). However,whereanopinionisnotinaccordwithotherinformationorisinany wayquestionable,wemaydiscountorgivelessweighttothatevaluation. Id.
This standard occupationalclassification(SOC)code 11-9032correspondstotheoccupationofeducationadministrators, kindergarten through secondary. See https://www.onetonline.org/link/summaty/11-9032.00 (last accessed Mar. 14, 2022).
The evaluator indicated that he reviewed the Petitioner's diplomas, transcripts, and resume. We
Section 3. Nontechnical Description of Job: Plan, direct, or coordinate the academic, administrative, or auxiliary activities of public or private elementary or secondary level schools.
The Petitioner's "Professional Plan & Statement" submitted with the initial filing confirms that she intends to continue working as an education administrator.
In response to the Director's request for evidence (RFE), the Petitioner indicated in an updated "Professional Plan & Statement" that, in addition to working as an education administrator, her "overall proposed endeavor in the U.S. is to work as an entrepreneur within the field of education" and "to open at least three businesses based in the education sector." As discussed by the Director, the Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971).Not eligible at the time of filing Fmiher, the purpose ofanRFEis to elicitinfomiation that clarifies whethereligibility forthebenefitsoughthasbeenestablished,asofthetimethepetitionisfiled. See8C.F.R§§103.2(b)(l), 103.2(b)(8), 103.2(b)(12). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, material changes are made to the initial request for approval, a petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.Tried to change the endeavor after filing
The Director should determine whether the information provided by the Petitioner in the RFE response provided more specificity to the proposed endeavor as initially described or added an additional endeavor. In determining whether an individual qualifies for a national interest waiver, we must rely on the specific proposed endeavor to determine whether (1) it has both substantial merit and national importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. Accordingly, the Director should determine whether the RFE response presented a new set of facts regarding the proposed endeavor, which is material to eligibility for a national interest waiver. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90.
Conclusion
For the reasons discussed above, we are remanding the petition for the Director to consider whether the Petitioner 1) qualifies for EB-2 classification, the threshold determination in national interest waiver cases and 2) has provided sufficient and consistent information regarding her proposed endeavor such that he may determine whether a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The Director may request any additional evidence considered pertinent to the new determination.
ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing analysis and entry of a new decision.