The Petitioner, an executive director of a nonprofit research organization, seeks classification as a member of the professions holding an advanced degree or of exceptional ability, Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l l 53(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this employment based second preference (EB-2) classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national interest to do so. See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts in concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
The Director of the Texas Service Center denied the petition, concluding the record did not establish that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christa's, Inc. , 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
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. Section 203(b )(2)(B)(i) of the Act. 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 of a master's degree. 8 C.F.R. § 204.5(k)(2).
Once a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates that:
- 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.
Id.
Analysis
Here the Director concluded that the Beneficiary qualified for the EB-2 immigrant category based on having earned an advanced degree. The issue on appeal is whether the Petitioner has established that a waiver of the requirement of the job offer, and thus a labor certification, would be in the national interest. A remand is warranted because the Director's decision does not contain sufficient analysis of the national interest prong as contemplated in Dhanasar. Our exercise of discretion to waive the requirement of a job offer, and therefore a labor certification, requires adherence to all three of the prongs in the Dhanasar framework.
The first prong of the Dhanasar analysis focuses on the substantial merit and national importance of a proposed endeavor. The substantial merit of an endeavor can be shown in any number of areas such as business, entrepreneurialism, science, technology, culture, health, education, arts, or the social sciences. The furtherance ofhuman knowledge, potential economic impact on, and economic benefits for the United States can also be evaluated to determine the substantial merit of a proposed endeavor. In denying the Petition, the Director determined that while the endeavor had substantial merit, the record lacked evidence to indicate that it is nationally important.
In determining national importance under Dhanasar, the relevant question is not the importance of the field, industry, or profession in which the individual will work; instead, we focus on "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Further, "[ a ]n undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances." Id.
As the Executive Director of the the '----------------------~....__~ Beneficiary's proposed endeavor is to provide vision, develop strategy, and implement the~-~ efforts to educate pro-democracy dissidents worldwide. The Beneficiary intends to train civil society actors in authoritarian regimes to employ strategic nonviolent action and conduct research and 1 See Flores v. Garland. 72 F.4th 85. 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). p. 3 advocacy on nonviolent civil resistance. Among the documents supporting the request to waive the job offer are descriptions ofl Ioutreach and training programs; detailed service fontracts; recommendation letters from a member of the U.S. Senate, faculty at the I ]School, a former director at the I l 1eaders with USAID, a former Ambassador and journalists and academics in the field of nonviolent civil resistance. Also included is information on the Petitioner'
,.........___ _______, ' recognition awarded to the Beneficiary in 2005 by former .__ references to the Beneficiary's books on pro-democracy movements and student activism; various articles authored by the Beneficiary and other articles written about the Beneficiary's work; references to films documenting the Beneficiary's work in nonviolent conflict strategy; training materials, including programs and references to video game trainings; the Beneficiary's scholarly contributions; U.S. government press releases and reports on human rights; as well as other articles explaining the importance of nonviolent resistance movements.
In the request for evidence (RFE), the Director explained that the Beneficiary's proposed endeavor does not demonstrate that it will have broader implications and operate on such a large scale as to impact the economy or create jobs.No broader implications shown The RFE also indicated that the endeavor was not sufficiently detailed in explaining the dissemination oftraining methods or course materials such that the endeavor would provide a platform for the introduction ofnew training processes or methodologies or influence the broader sector. In response, the Petitioner submitted additional evidence of the training, methodology, advocacy and action plan for the endeavor and asserted that an endeavor's economic impact is one part of the analysis used to determine whether an endeavor is nationally important and that other factors such as matters related to research, science and the furtherance of human knowledge may be nationally important. In denying the petition, the Director did not adequately discuss the additional materials submitted in response to the RFE or address the potential prospective impact of the endeavor apart from concluding that the Beneficiary's endeavor would not have an economic impact.Job creation or economic claims unsupported
An officer must fully explain the reasons for denying the application in order to allow the petitioner a fair opportunity to contest the decision and to afford us an opportunity for meaningful appellate review. Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that an Immigration Judge must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the determination on appeal). Further, if evidence is highly relevant, the adjudicating body must at least acknowledge that evidence, either implicitly or explicitly, in its decision. The decision must create the conviction that it "considered and reasoned through" the highly relevant evidence. Farah, 12 F.4th at 1329 (citing Ali v. US. Att'y Gen., 931 F.3d 1327, 1331 (11th Cir. 2019)).
Here, the Director concluded that the Petitioner had not established the national importance of his proposed endeavor. However, the Director's determination was conclusory and did not provide a thorough analysis ofthe Petitioner's evidence or explain the reasoning behind the decision. As noted, the Petitioner submitted service contracts, recommendation letters, references to the books, articles, and video games he authored as well as documentaries on the Beneficiary to support the claim that the proposed endeavor meets the first prong of the Dhanasar framework. This evidence was not fully analyzed or reviewed in the dismissal. For example, the Director noted that the Beneficiary's submissions do not describe how the proposed endeavor of working as an executive director has the potential to result in a broad impact that would be commensurate with national importance but fails to detail in what ways the p. 4 evidence is insufficient and overlooks documents in the record. The Director's decision states that the Petitioner "does not provide details on the content, structure, development, or means of delivery of this training." This characterization ofthe evidence is incorrect though. The documents submitted in response to the RFE do provide specifics as to the content, structure and delivery of the trainings. As this matter will be remanded, the Director should review the record to determine whether the proposed endeavor has national importance by considering the broad implications of the Beneficiary's work in supporting the U.S. government's investments and initiatives in democracy building and human rights.
Ifthe Director concludes that the evidence does not meet the national importance elements ofDhanasar 's first prong, the decision should discuss the insufficiencies in the evidence and explain the specific reasons for the ineligibility.
The Director reached a similarly conclusory determination with respect to Dhanasar 's third prong determining that the Beneficiary did not demonstrate that the proposed endeavor would lead to potential creation ofjobs and therefore the endeavor lacks evidence to demonstrate it would be beneficial to the United States. The denial does not indicate that the Director thoroughly considered the Beneficiary's unique skills and experience when weighing whether the Petitioner has demonstrated that it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. While the evidence ofrecord may ultimately be insufficient to demonstrate the Petitioner's eligibility for the requested national interest waiver ofthe job offer requirement, the Director did not adequately address the evidence and arguments submitted with the initial filing and in response to the RFE. Nor did the Director discuss the most relevant factors set forth in Dhanasar, and therefore did not sufficiently explain the reasons for the denial.
Conclusion
For the foregoing reasons, the matter will be remanded to the Director to determine whether the Petitioner has established the national importance of the Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision and on the balance, whether it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for the Beneficiary. The Director may request any additional evidence considered pertinent to rendering a decision under the foregoing analysis, and we express no opinion regarding the ultimate resolution of this case on remand.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.