The Petitioner, a general and operations manager, seeks second preference immigrant classification as a member of the professions holding an advanced degree, 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. § l l 53(b)(2).
The Director ofthe 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.
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 nova 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 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 of the United States, and whose services in the p. 2 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.
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 ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, 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.
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 United States to waive the requirements of a job offer and thus of a labor certification. In performing 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) See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
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 a petitioner has p. 3 considered must, taken together, indicate that on balance, it would be beneficial to the United States The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced degree. Accordingly, the next issue to be determined on appeal is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest.
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a "Professional Plan & Statement" indicating:
My career plan in the United States is to continue working as [a] General and Operations Professional to advise U.S. companies on how to properly plan, direct, and coordinate the operations of public or private sector organizations. I intend to continue using my vast expertise and knowledge to provide expert managerial services to U.S. companies gained from over 21 years ofexperience.
Additionally, my business experience working in the business and operations management of a company in the supermarket industry, will allow me to work with U.S. companies looking to capitalize in these sectors, especially including those doing business or planning on expanding their business internationally, with the greatest of ease.
In response to the Director's request for evidence (RFE), the Petitioner submitted an updated "Professional Plan & Statement" reflecting:
[M]y overall proposed endeavor in the United States is to offer my expertise to fill the gap o f experienced professionals in the U.S., who have extensive expertise in managing brick- and-mortar grocery stores as well as online grocery companies as well. As a consultant in the retail sector, I bring innovative results to local companies, organizations and individuals improving their monetary interests. My plan to establish a consulting firm here in the U.S. that will improve the bottom line through lean retailing, optimized sourcing, best practice supply chain management, and efficient store operations. Getting ready for sustainable success by building robust organizations, superior skills, and smooth change management processes. I also intend to train retail professionals locally, enabling them to work in these stores. These professionals will be part of the staff or consultants ofthe company.
The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but not its national importance. In his decision, the Director thoroughly discussed the Petitioner's claims and documentation and correctly concluded that they did not meet the national importance requirement ofDhanasar's first prong. Upon consideration ofthe entire record, including the arguments made on to waive the requirements of a job offer and thus of a labor certification.
Analysis
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. p. 4 appeal, we adopt and affirm the Director's decision relating to Dhanasar's first prong determination with the comments below. See Matter ofP. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter ofBurbano, 20 I&N Dec. 872,874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case).
On appeal, the Petitioner states that "[tJo further emphasize the scope and prevalence of [his] proposed endeavor, please review the record, specifically the Industry Reports and Articles, which discuss the important role that General Operations Managers and Entrepreneurs play in the heart and foundation ofAmerican's future." In determining national importance, the relevant question is not the importance of the 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. Although he provided evidence relating to the general operations manager and entrepreneur positions and their roles, as discussed in the Director's decision, the Petitioner must demonstrate the national importance of his specific, prospective consulting services rather than the national importance of general operations managers and entrepreneurs in the supermarket industry or the wide range of the operation management field in which he intends to work. In Dhanasar, we noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking may have national importance for example, because it has national or even global implications within a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance." Id. at 890.
In addition, the Petitioner argues that he "will focus the impact of his U.S. business by providing consultation and services in the logistic and supply chain sectors with a focus on improving processes, enabling cost reductions, and improving operations through quality consultancy services." As indicated by the Director, the Petitioner initially claimed that his proposed endeavor would be to work as a "General and Operations Professional." However, in response to the Director's RFE, the Petitioner asserted that he intended "to establish a consulting firm here in the U.S." The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied from the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Moreover, a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter o fBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we will not consider the Petitioner's materially changed proposed endeavor of operating a consulting service.Tried to change the endeavor after filing
Moreover, the Petitioner claims that his proposed endeavor will "generate substantial ripple effects upon key business activities on behalf of the United States - namely, serving the vital functions of operational management, contract negotiations, cross-border transactions, strategic planning, among other[s], in the United States." To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to evidence documenting the "potential prospective impact" of his work. As discussed in the Director's decision, the Petitioner did not offer specific information and evidence to corroborate his assertions that the prospective impact of his proposed endeavor rises p. 5 to the level of national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, the record does not show through supporting documentation how providing general operation manager services stands to sufficiently extend beyond the businesses that employ him, to impact the industry or the U.S. economy more broadly at a level commensurate with national importance.
Furthermore, the Petitioner contends that his "proposed endeavor will have multiple positive effects on U.S. business environment, thus enhancing societal welfare on behalf of the nation." As pointed out by the Director, the Petitioner did not show that his proposed endeavor has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation.Job creation or economic claims unsupported Without evidence regarding any projected U.S. economic impact or job creation attributable to his future work, the record does not show any benefits to the U.S. regional or national economy resulting from the Petitioner's operations manager or entrepreneur position would reach the level of"substantial positive economic effects" contemplated by Dhanasar. Id. at 890.
Because the documentation in the record does not establish the national importance of his proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstratedeligibilityforanationalinterestwaiver. Furtheranalysisofhiseligibilityunderthesecond As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude that he has not demonstrated that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed. and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose.
Conclusion
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that ·'courts and agencies are not required to make findings on issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).