The Petitioner, a travel management specialist, seeks second preference immigrant classification as a member of the professions holding an advanced degree, as well as a national interest waiver ofthe 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 o fthe Nebraska Service Center denied the petition, concluding that although the Petitioner qualified for the underlying classification as a member ofthe professions holding an advanced degree, she had not established that a waiver ofthe requiredjob offer, and thus ofthe labor certification, would be in the national interest. The Petitioner appealed the matter to us, which we dismissed. The matter In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit See section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will withdraw the Director's decision and remand the matter for further review ofthe record and issuance ofa 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.
A motion to reconsider must (1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application oflaw or U.S. Citizenship and Immigration Services (USCIS) policy, and (2) establish that the decision was incorrect based on the evidence in the record of proceedings at the timeoftheinitialdecision. 8 C.F.R. § 103 .5(a)(3). is again before us on a motion to reconsider.
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)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 101 (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 of the occupations listed in section 10l(a)(32) of the 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 interesi" we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f Dhanasar, 26 I&N Dec. 884 (AAO 2016). 2 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may,asmatterofdiscretion3,grantanationalinterestwaiverifthepetitionerdemonstrates: (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 anindividualofexceptionalability. Inourdismissalofthepriorappeal,wewithdrewtheDirector's The Petitioner indicated in Part 6., Basic Information About the Proposed Employment, ofthe Form 1-140, Immigrant Petition for Alien Worker, that her job title would be "Travel Management Specialist" and that the standard occupational classification (SOC) code is 39-7012, which In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Departmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
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 national interest wa iverto be discretionary in nature).
We also note concerns with the submitted education evaluation which concluded that the Applicant holds the equivalent of a U.S. master's degree in hospitality management. Although the evaluator provided a conclusion regarding the combination ofthe Petitioner's education and experience, he does not claim to have reviewed any employment letters to establish the Petitioner's work history or experience, as required by 8 C.F.R. § 204.5(k)(3)(i)(B). Further, the basis for such statements as the Petitioner served "in positions of progressively increasing responsibility and sophistication, characterizedbythe theoreticalandpracticalapplicationofspecializedknowledgeandtrainingbysuperiors, togetherwith peers, with advanced-level education in Hospitality Management and related areas" has not been established. 5 Sec https://www.onetonline.org/link/summary/3 9-7012.00 conclusion that the Petitioner had established eligibility as an advanced degree professional. explained, the regulation at 8 C.F.R. § 204.5(k)(2) defines a profession, in pertinent part, as "any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation."
On the U.S. Department of Labor, Employment and conesponds to the occupation of"travel guide."
Training Administration, Form ETA 750 Part B, Application for Alien Employment Certification, the Petitioner confirmed that she wouldbe a "Travel Management Specialist" under "Occupation in which Alien is Seeking Work."
As we
Here, the Petitioner has not established that a travel management specialist is a profession as defined bysection101(a)(32)oftheActand8C.F.R.§204.5(k)(2). However,thePetitioneralsoclaimsthat she is an individual of exceptional ability. We, therefore, find it appropriate to remand the matter for the Director to make an initial determination regarding exceptional ability.
B. SubmittedEvidence
The record contains a variety ofevidence to support the Petitioner's assertions that she meets the three prongs of the Dhanasar analysis. For example, the Petitioner submitted printouts from her claimed w e b s i t e at IF i r s t , w e n o t e t h a t , a s o f t o d a y , t h e p r o v i d e d i n t e r n e t a d d r e s s i n d i c a t e s that "the domain is not connected to a website." Further, the Petitioner appears to have copied much of the language verbatim from a number of other company's websites. On the page listing "Services," the section "Destination, branding, marketing and digital" is identical to the language from the section with the same name on https://www.team-tourism.com/consultancy-services/. Similarly, the section '·Anti-crisis consulting and management" appears to have been copied from portions ofthe website at https://cantortactical.com/travel-security-consulting/. Inaddition,theinformationfromthe"About" page, contains verbatim language from the "Travel & Tourism" page at https://www.consultants- managers.com/travel-tourism.html.
The Petitioner's business plan and presentation also contain language that appears to have been copied from a variety ofother sources. For example, her discussion ofthe potential challenges for customers, hotels, and technology, uses verbatim language from an article posted at http://www.virtual-reality- in-tourism.com/vr-future-selling-hotel-rooms/. Inaddition,herbusinessmodeldescriptioncontains identical language to that found in TripAdvisor's annual rep01i at http://annualreport.stocklight.com/NASDAQ/TRIP/19625684.pdf. Fmiher, much of her business plan appears to have been copied from https://ptgconsulting.com/.
We further note that it is unclear whether the Petitioner was able to pursue two bachelor's degrees in different fields at two different universities while also working full-time between July 2009 and September 2011 as claimed.
The Petitioner must resolve the above 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 in support of the requested immigrationbenefit.Inconsistencies in the record Id.
Conclusion
For the reasons discussed above, we are remanding the petition for the Director to consider whether the PetitionerqualifiesforEB-2classificationasanindividualofexceptionalability. TheDirectormay also wish to consider whether the Petitioner's submission of evidence which appears to have been copied from other sources without acknowledgement constitutes willful misrepresentation of a p. 5 material fact. determination.
ORDER:
The Director may request any additional evidence considered pertinent to the new 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.
To find a willful and material misrepresentation in visa petition proceedings, an immigration officer must detennine: I) that the petitioneror beneficiary made a false representation to an authorized official of the United States government; 2) that the misrepresentation was willfully made; and 3) that the fact misrepresented was material. See Matter ofM-, 6 I&NDec. 149 (BIA 1954); MatterojL-L-, 9 I&NDec. 324 (BIA 1961); KaiHingHui, 15 I&NDec. at288. Section 212(a)(6)(C) ofthe Act, 8 U.S.C. § 1l 82(a)(6)(C),provides:
Misrepresentation-(i) In general-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United S t a t e s o r o t h e r b e n e f i t p r o v i d e d u n d e r t h i s A c t is i n a d m i s s i b l e .