The Petitioner, a wrestler, seeks second preference immigrant classification as an individual of exceptional ability in the sciences, arts, or business, 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 ofthe Nebraska Service Center denied the petition, concluding that the Petitioner qualified for classification as an individual of exception ability, but that he 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 he 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 nova 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 (emphasis added), 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) 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.
Section 10l(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:
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 demonstrate eligibility as an individual of exceptional ability, a petitioner 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 Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016).
Dhanasar states that after a petitioner has established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner demonstrates: (1)thattheforeignnational'sproposedendeavorhasbothsubstantialmeritandnational 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 In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). deny a national interest waiver to be discretionary in nature). and thus of a labor certification.
See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
Analysis
The Petitioner is a I Iwrestler and he proposes "to continue working in [his] area of expertise." exceptional ability, but concluded that he did not meet any of three prongs set forth in the Dhanasar analytical framework. A. Exceptional Ability
For the reasons discussed below, upon review ofthe record, we must withdraw the Director's finding that A license to practice the profession or cert[fication for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). The Director determined that the Petitioner's "Master of Sports" certificates from the Committee of Physical Education and Sport Under the Government of the Republic o~ Isatisfy this criterion. As the record does not establish thatI Iwrestling meets the definition ofprofession at 8 C.F.R. § 204.5(k)(2), the Petitioner must demonstrate that these two "certificates" are certifications for his occupation.
In response to the Director's request for evidence, the Petitioner claimed that the certificates "are official In this matter, the Director determined that the Petitioner qualifies as an individual of the Petitioner established that he qualifies as an individual of exceptional ability. titles issued by ... the official and highest governing body for athletes inI substantial contribution made []to the particular athletic field." While we acknowledge that the 2019 letter from the I IWrestling Federation repeats this claim, the Petitioner has not provided any supporting evidence to establish the requirements for receiving these certificates or sufficiently explained how they are a certification for his occupation. Without more, such general assertions are not probative evidence and do not demonstrate that these certificates meet the plain language of this criterion.
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Director determined that the Beneficiary's membership on the.___ _ _ _ _ _ _ _ _ _ _ _ _, Wrestling Team satisfied this criterion. establish that it is a professional organization. As noted above, profession is defined as "one of the occupations listed in section 10l(a)(32) ofthe Act, as well as any occupation for which a United States We also note that the Petitioner does not claim that he meets any of the criteria based upon comparable evidence. For comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to his or her occupation and establish that the submitted evidence is "comparable" to that criterion. 8 C.F.R. § 204.5(k)(3)(iii).
However, the Petitioner did not submit any evidence to
As explained by the Director, the Petitioner provided little information regarding his specific proposed endeavor. As will be discussed later in this decision, the Petitioner has not established that he is a member of the team. O
Iin recognition of a p. 4 baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the occupation." 8 C.F.R. § 204.5(k)(2). Evidence ofrecognition for achievements and sign[ficant contributions to the industry or.field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
The plain language of the criterion requires recognition for both achievements and significant contributions to the industry or field. As noted above, the Petitioner holds two "Master of Sports" certificates and the 2019 letter from theI IWrestling Federation states that the certificates are awarded for "substantial contributions." However, without additional evidence, such as objective information regarding the requirements to receive these certificates and the Petitioner's specific contributions to the sport, the Petitioner has not established that he meets this criterion.
Finally, in this matter, the Director failed to conduct a final merits determination, but concluded that the Petitioner qualified as an individual of exceptional ability. The Director should discuss the submitted evidence and, if the Petitioner establishes that he meets at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii), determine whether he has also demonstrated that he possesses a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business in a final merits determination.
For all ofthese reasons, we withdraw the Director's finding on this threshold issue and remand the matter to the Director to determine anew whether the Petitioner qualifies for EB-2 classification.
B. InconsistenciesintheRecord
In addition to the above, we must also note our concerns regarding inconsistencies in the submitted documentation. According to the record, the Petitioner was born in 1998. It is, therefore, unclear why the Petitioner submitted a number of certificates for age categories that do not accurately reflect his year of birth. Forexample,
- Certificate of Honor from the Management of Youth Affairs, Sports and Tourism o_fl_ _ _ ~ I lfor "Pt place in the wei~ht ofI Iamong youth born in 1995-1997 in the open championship o~,___ _ _ _ ~j'
Diploma from re ~ammitt:e for Youth Affairs, Sports and Tourism Under the Government of the Republic o_ ~ ~ Ifor "D-2 weight~ Ifor taking the first place in the republican tournament [i]nI Iwrestling' among youth of 1994-1996 year ofbirth."
Diploma froml I"for taking the second place in the republican tournament on I I Iwrestling' amongjuniorsof1995-1997yearofbirthincelebrationof20th anniversaryof I
16th Congress ofthe Supreme Council ofthe Republic ofi Iand Day ofnational flag."
- ,.....,.........,.......,,""""'......,_,"'--~ chievement from the Department for Youth Affairs, Sports and Tourism of o~ [for______~wrestlingamongyouthof1995-1997yearofbirthinw eight~ st r----r----.===-=-'"f:..::o:.::.r..:;ta=k.:::;;ingthe1 placeinweightoc=]intheOpenChampionship p. 5 We also have questions regarding the 2019 letter from the I !wrestling Federation, which claimed that the Petitioner had been a member o f the I J !National Wrestling Team since 2010 and its team captain since 2012. Not only was the Petitioner fourteen years old at the time, but he was still competing inthejuniorand/oryouthcategoryatamostlylocaland/orregionallevel. Accordingtotheletter,atthe time of his selection, their National Team included a "silver medalist in the 2013 Asian Championship th and the winner of[] 12 place [at] the 2012 Olympic games." Further, the letter indicates that the team captain is the "chief assistant to the head coach in matters of technical, tactical, and special training" and "advis[es] the coach on [the] success ofhis methods for improving the skills of [the] athletes." In contrast, the February 13, 2020 "reference letter," purportedly from the same author at t h ~ W r e s t l i n g Federation, stated only that the Petitioner in "2010 became [a] member o f [ t h e ] L _ _ J Wrestling Federation (emphasis added) and has achieved a number of sporting results," but makes no mention of being either a member ofthe National Team or its captain.
The Petitioner must resolve these 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 in support of the requested immigration benefit. Id.
C. Dhanasar Analysis
Regarding the Petitioner's claims of eligibility under the Dhanasar analysis, we agree with the Director's ultimate conclusions that the Petitioner has not meet any of the three prongs.
Conclusion
For the reasons discussed above, we are remanding the petition for the Director to consider anew whether the Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver cases. 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 farther proceedings consistent with the foregoing analysis and entry of a new decision.