The Petitioner, a transportation engineer, seeks classification as a member of the professions holding an advanced degree and an individual of exceptional ability in the sciences, arts, or business. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this employment- based, "EB-2" immigrant classification. See section 203(b)(2)(B)(i) ofthe Act. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver ofthe required job offer, and thus of a labor certification, when it is in the national interest to do so.
The Director of the Texas 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 requested benefit Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo 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 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)Waiverofjob 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.
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 of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established 1 eligibility for EB-2 classification, USCIS may, as a matter of discretion, 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, regarding substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to unde1iake. The endeavor's merit may be demonstrated in a range of areas 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming 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 ajob offerorforthepetitionerto 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 warrantforgoing the labor certification process. In each case, the factor(s) Sec also Poursina v. USCJS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
I considered must, taken together, indicate 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.
Analysis
The Petitioner earned a bachelor's degree in civil engineering atl in 2002. The resume submitted with the petition lists two employers He workedfor I Iin Brazil, in several capacities: as a trainee from June 1994to November 1995; a PAC operator from November 1995 to December 1999; a traffic operator from December 1999 to April 2008: and as a traffic manager from April 2008 to June 2012. In 2010, he founded la company inl Iengaged in "[r]etail trade of glass" and "[i]nterior decoration services," and served as its commercial manager.
The Petitioner entered the United States in 2017 as the F-2 spouse of an F-1 nonimmigrant student At the time he filed the petition in April 2019, the Petitioner was not authorized to work in the United States, and, according to his resume and other materials in the record, apparently had not worked in the field of transportation engineering for about seven years. After he obtained employment authorization, the Petitioner worked in what he described as "the tourism industry," mostly renovating hotel rooms.
A. Eligibility for the Underlying Classification
The Director denied the petition based solely on the Petitioner's request for a national interest waiver of the job offer requirement, and we will address that issue below. But first we will address the threshold requirement that the Beneficiary must qualify for classification under section 203(b)(2) of the Act, either as a member of the professions holding an advanced degree or as an individual of exceptional ability in the sciences, arts, or business. The Petitioner has submitted evidence relating to each of these two sub-classifications. The Director did not address this issue in the decision notice, and therefore there has been no finding regarding the issue, either favorable or unfavorable.
1. MemberoftheProfessionsHoldinganAdvancedDegree
To show that the beneficiary is a professional holding an advanced degree, the petitioner must submit either: (A) an official academic record showing that the beneficiary has a United States advanced degree or a foreign equivalent degree; or (B) an official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equivalent degree, and letters from currentor former employer(s) showing that the beneficiary has at least five years of progressive post- baccalaureate experience in the specialty. 8 C.F.R. § 204.5(k)(3)(i). "Profession"means one of 1he occupationslistedinsection101(a)(32)oftheAct,aswellas anyoccupationforwhichaUnitedStates baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
As an engineer, the Petitioner qualifies as a member ofthe professions, but he does not claim to hold anadvanceddegree. Heinsteadreliesonhisbachelor'sdegreeandpost-baccalaureateexperience.
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
!University in Brazil
But the Petitioner has not shown that he has at least five years of post-baccalaureate experience as a transp01iationengineer. Ate=]thePetitionerheldthetitleoftrafficoperatorfrom1999until2008, whenhebecameatrafficmanager. ThePetitionerearnedhisengineeringdegreein2002,andreceived hisengineer'slicensethatsameyear. BecausethePetitionerdidnotyetholdengineeringcredentials in 1999 when he started working as a traffic operator, we cannot conclude in the absence of further informationthatheworkedasatransportationengineerafter2002,whilehestillheldthe title oftraffic operator. The record does not document that his experience in what would appear to be a non- professional occupation qualifies as experience in the specialty oftransportation engineering.
A letter from specifies that the Petitioner worked as a traffic manager until June 26, 2012; it does notspecifywhentheBeneficiarybeganworkinginthatcapacity. ButthePetitionerhimselfasse1ted that he began working as a traffic manager in April 2008. These dates indicate slightly more than four years of experience as a traffic manager. The Petitioner's subsequent employment was in an area with nodemonstratedrelationtotransportationengineering. Therefore,theinformationinthePetitioner's initial submission does not show at least five years ofprogressive post-baccalaureate experience in the specialty of transportation engineering.Five years of progressive experience not documented
After the Director issued a notice of intent to deny (NOID), the Petitioner's response included a new resume, in which he claimed to have worked as a civil engineer for Ifrom 2002 to 2008. ThePetitionerdidnotexplainwhyhedidnotmentionthisclaimedemploymentontheearlier version of his resume, or on Form ETA 750 Part B, Statement of Qualifications of Alien, which instructed him to list "any ... jobs related to the occupation" in which he now seeks employment.
The Petitioner did not submit any evidence fromI Ito corroborate this new claim of relevant employment experience as required by 8 C.F.R. § 204.5(g)(l ), which requires evidence of past employment in the form ofletters from the employers. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). An uncorroborated claim has no weight as evidence and cannot satisfy the Petitioner's burden of proof.
Furthermore, this newly claimed employment from 2002 to 2008 entirely overlaps with his previously claimed employment f o r The Petitioner does not explain why he omitted this claim from several previously submitted forms and documents purporting to detail his employment experience. The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). While not a basis for denial in the matter before us, the Petitioner must address this issue in any further filings in which his claimed employment forl is a factor.
2. ExceptionalAbility
To show that the beneficiary is an individual of exceptional ability in the sciences, arts, or business, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) requires evidence to meet at least three of six threshold criteria. Whereapetitionermeetstheseinitialevidencerequirements,wethenconsiderthetotalityof the material provided in a final merits determination and assess whether the record establishes exceptional ability, defined at 8 C.F.R. § 204.5(k)(2) as a level of expertise significantly above that ordinarily encountered. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir.2010) (discussing a two-part p. 5 review where the documentation is first counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be dete1mined not by the quantity of evidence alone but by its quality," as well as the principle that we examine "each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to dete1mine whether the fact to be proven is probably true." Matter of Chawathe, 25 I&N Dec. 369,376 (AAO 2010).
The Petitioner claimed to satisfy all six of the exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii). Review of the evidence indicates that the Petitioner meets the facial requirements of three criteria, p e r t atoi ancaidenmigc detgroee, licensure, and recognition (here, in the f01m of letters from peers at L__JTherefore, we proceed to the final merits determination, as described below.
Meeting the minimum requirement by providing at least three types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for exceptional ability classification. Officers must also consider the quality of the evidence. In the second part of the analysis, officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination. The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
The petitioner must demonstrate that the beneficiary is above others in the field; qualificationspossessedbymostmembersofagivenfieldcannotdemonstrateadegree of expertise significantly above that ordinarily encountered. The mere possession ofa degree, diploma, certificate or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.
Furthermore, formal recognition in the form of certificates and other documentation that are contemporaneous with the beneficiary's claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the beneficiary's achievements.
do not establish that the Petitioner has a degree of expertise significantly above that ordinarily encountered among transportation engineers.
For the above reasons, the Petitioner has not met his burden of proof to establish eligibility for classification under section 203(b)(2) ofthe Act. The Petitioner must address this issue in any further filings.
B. National Interest Waiver
The Petitioner's initial submission included a "Professional Plan & Statement," which reads, in part: My career plan in the United States is to continue my career working with an American traffic engineering firm where I will develop strategic partnerships involving new businesses in the U.S. in order to help grow a company's engineering portfolio. I will provide indispensable guidance regarding large-scale projects involving construction and transportation engineering. I would love to work extensively ... in the managerial and procurement aspect of the engineering process. This will serve to increase the security in construction projects and benefit a client financially....
My specific endeavor will potentially impact the U.S. in the following ways:
- Develop large and highly complex transportation engineering projects to improve traffic flow, efficiency and safety;
- Maintain high quality and safety standards;
- Advance the proposed endeavor of applying my expertise and skills in the field of transportation engineering to seize market and investment opportunities for U.S. companies in the lucrative Brazilian and Latin American markets;
- Train and guide newer generations oftransportation engineers;
- Generate U.S. tax revenue and create jobs for Americans.
The Director concluded that the Petitioner established the substantial merit of his proposed endeavor, and that he is well positioned to undertake that endeavor, but that the Petitioner had not shown the endeavor to be of national importance or that, on balance, it would be beneficial to the United States to waive the job offer requirement.Did not show the waiver outweighs labor certification As outlined below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national importance of his proposed endeavor under the first prong In the denial notice, the Director acknowledged the substantial merit of the Petitioner's proposed endeavor,butconcludedthatthePetitionerhadnotestablisheditsnationalimportance. TheDirector noted that the overall importance of the Petitioner's occupation does not establish the national importance of the Petitioner's particular proposed endeavor. The Director concluded that "the petitioner would be limited to serving the clientele of an engineering company," and that while the of the Dhanasar analytical framework.
While wemaynotdiscusseverydocumentsubmitted,wehavereviewedandconsideredeachone.
"proposed endeavor may potentially extend beyond the organization and its clients," the Petitioner did not "explain and demonstrate how the petitioner['s] proposed endeavor will extend to the level of national importance." The Director stated that the Petitioner did not "demonstrate that his proposed endeavor has national or even global implications," "has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation."Job creation or economic claims unsupported
The Petitioner submitted backgroundinfonnation concerning infrastructure modernization and foreign workers in science, technology, engineering, and mathematics (STEM) fields. These materials addressed the substantial merit aspect but did not establish the national importance ofthe Petitioner's proposed endeavor in particular.
The Director issued a notice of intent to deny the petition, stating that the Petitioner did not submit evidence "that provides specific insight into what he intends to do as a Transportation Engineer." In response, the Petitioner asserted that "[h]is proposed endeavor is essential to the country's economic and social development, as well as addresses a national shortage of engineering professionals." A claimed shortage of transportation engineers does not give national importance to the proposed endeavor of one such engineer.Relied on a labor shortage The labor certification process, itself, takes into account a U.S. employer's inability to recruit qualified U.S. workers. The Petitioner does not explain why a stated sh01iage in his field should, itself, be grounds for waiving that process.
The Petitioner discussed "transportation infrastructure investments in I,"and stated: "I think that working directly forl Ican provide me with great opportunities to continue my career, using my knowledge in transportation engineering, because I believe thatI Iwill actively participatein the urban planning of the city ofl The Petitioner did not submit any evidence tha seeks to employ him in this manner. We acknowledge that the Petitioner seeks a waiver of the job offer requirement, which would apply in the context of labor certification. But here, the Petitioner specifically states that his proposedendeavorinvolves "working directly forI He bears the burden of proof to show that intends to employ him. If has no such plans, then the proposed endeavor cannot come to fruition. The Petitioner did submit a letter from an official o f I Icommenting on the Petitioner's contract work on a renovation project, but the official did not state thatl Ihas offered the Petitioner a job or intends to do so.
The Petitioner also provided statistics about the transportation infrastructure inl IFlorida, but did not explain how he would be responsible for that system or explain what he would do that would have national importance. It is not sufficient to assert an intention to work in a city with a large and complicated transp01iation system; the Petitioner bears the burden o f establishing how his work would rise to the level of national imp01iance.
On the subject of the Petitioner's future plans, it bears noting that the record does not contain any persuasive evidence that the Petitioner has worked in the field of transportation engineering since he left iinJune2012. HisonlydemonstratedemploymentinBrazilafter2012wasasthecommercial director of a company he and his spouse established, which sold "glass and mirrors for civil construction and interior design."
After the Petitioner obtained employment authorization in 2019, he worked "as an on-site Superintendentofhotelrenovationprojects." Theclaimedrelevancetotransportationengineeringis p. 8 that the projects included "adapt[ing] parking lots to the new reality of self-driving cars, electric vehicles...andchargingstations." Thisworkbearslittlerelationtothebackgroundmaterialsthat the Petitioner submitted in an effort to establish the national importance of his proposed endeavor, such as articles describing the hazards of aging bridges and other infrastructure.
The Petitioner also stated: "since April of 2021 ... I am cunently involved in a large and ongoing renovation project for the _ _ _ _ _ _ _ in I, FL." He did not explain how this work involvedtransportationengineering. Theaforementioned Iofficialindicatedinaletterthatthis projectinvolvedrenovationofhotelroomsratherthantransportationinfrastructure. ThePetitioner's employment in hotel renovations since 2019 does not readily establish his intention to pursue further employment in transportation engineering. He has not explained what steps, if any, he has taken to pursue employment in transportation engineering since he secured employment authorization, and he has not explained why he has worked for several years in unrelated fields both in Brazil and in the United States. This lengthy interruption in the Petitioner's employment as a transportation engineer, including employment in an unrelated field, raises questions about whether he actually intends to work as a transportation engineer in the United States.
The Director denied the petition, stating that the Petitioner "has not shown that benefits to the regional or national economy resulting from his proposed endeavor would reach the level of 'substantial positive economic effects' contemplated by Dhanasar."
On appeal, the Petitioner asserts that he has established, by a preponderance of the evidence, the national importance of his work "as a Transportation/Civil Engineer, which will affect nationally important objectives, explicitly the industrial and construction sectors." The Petitioner initially described his occupation as "transpmiation engineer," and he must establish eligibility as of the petition's filing date. See 8 C.F.R. § 103.2(b)(1). His documented work on other kinds ofconstruction projects occurred in the United States, after he filed the petition and obtained employment authorization. Apetitionermaynotmakematerialchangestoapetitioninanefforttomakeadeficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). The record does not reveal why the Petitioner has not been involved in transportation engineering in the United States, but we cannot credit his expansion of the proposed endeavor to include the hotel renovation work he has undertaken after he filed the petition.
Rather than provide detailed information about how his specific proposed endeavor would have national importance, the Petitioner has provided general information about his occupation. The Petitioner cites "the recent Infrastructure Bill passed by the Congress and signed by President Biden." At issue here is not the intrinsic importance of transportation engineering, but rather the national importance of the Petitioner's specific proposed endeavor. When asked to explain and document how his proposed endeavor, in particular, would have national importance, the Petitioner responded with evidence that indicates he is now employed in a different field, supervising hotel renovation crews.
Because the Petitioner has not met his burden of proof to establish the national importance of his proposed endeavor, he has not established eligibility for the national interest waiver. Detailed p. 9 discussion of the remaining prongs of the Dhanasar framework cannot change the outcome of this
Conclusion
Because the Petitioner has not met the required first prong of the Dhanasar analytical framew01k, we conclude that he has not established eligibility for a national interest waiver as a matter of discretion. T h e P e t i t i o n e r h a s a l s o n o t m e t h i s b u r d e n o f p r o o f to e s t a b l i s h e l i g i b i l i t y f o r t h e u n d e r l y i n g i m m i g r a n t classification. The appeal will be dismissed for the above stated reasons.
ORDER: The appeal is dismissed.