The Petitioner, a management analyst, seeks employment-based second preference (EB-2) immigrant classification as a member ofthe professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2).
SCOPS denied the petition. SCOPS determined that the Petitioner qualifies as a member of the professions holding an advanced degree. However, SCOPS concluded that the record does not establish that a waiver of the job offer requirement, and thus of a labor certification, would be in the national interest. The matter is now before us on appeal pursuant to 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 dismiss the appeal.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act.
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 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 the proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Id.
Analysis
SCOPS found that the Petitioner qualifies as a member of the professions holding an advanced degree. However, for the reasons discussed below, the Petitioner has not established that the proposed endeavor has national importance, as required by the first Dhanasar prong. See id.
The Petitioner described the endeavor as a "plan to establish a company in the U.S. providing unique healthcare management and consultation including research and data analytics regarding new effects of existing pharmaceutical products, development of targeted patient-specific treatment and wellness surveys, and data-driven, regionally varied medical instructional services across the nation." The Petitioner elaborated that his startup medical consulting services company's target clients would include "pharmaceutical companies, private providers of medical care, research organizations, and government hospitals and medical associations." He stated that, unlike "[t]he two largest pharmaceutical consulting firms in the United States," which are "mostly focused on the development of clinical trials and recommendations related to recent biotechnological developments," his startup medical consulting services company "will focus its efforts on examining medications already available on the market, determining current and potential alternative, off-label uses for these pharmaceutical drugs." He summarized the benefits his startup medical consulting services company would create as "[a]dvancing the cause ofpersonalized medicine in the U.S., ... [g]reater affordability and efficacy of pharmaceutical products," and "[t]raining and instruction of medical professionals to combat the U.S. physician shortage."
In response to SCOPS' request for evidence (RFE), the Petitioner submitted a business plan for his startup medical consulting services company; however, the plan provides limited information regarding the specific endeavor the Petitioner proposes to undertake. The plan, which refers to the startup medical consulting services company simply as "The Company," indicates that the unnamed company would be located generally "in California," with an abstract goal of "expanding its reach by opening new consulting offices" in unidentified locations at some unspecified point "[a]fter the initial year of operation." The plan states that the Petitioner would work as the company's chief executive officer, and that the company would initially employ seven additional workers, described as "a team of one Data Analyst, two Consultants, one Marketing Specialist, one Engineer, and two Drug Repurposing Research Scientists." The plan farther indicates that, other than the Petitioner and the marketing specialist earning annual salaries of $80,000 and $60,000, respectively, all workers would earn annual salaries of $70,000, with total payroll expenses of $560,000.
The business plan contains arbitrary, unsubstantiated, and inconsistent information that casts doubt on its veracity, which undermines its reliability and sufficiency, and the reliability and sufficiency of the remainder of the record.Claims not backed by documents See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (providing that doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa petition).
For example, the business plan projects total sales of $773,220 in the first year of operations, comprised of $360,000 from data analysis and research services, $238,500 from "developing patientspecific surveys," and $174,720 from "standardizing medical practice." The plan specifies that its calculation of $360,000 anticipated revenue from data analysis and research services is based on "set[ting] an average price of $3,000 per week for data analysis and research services," which in tum is based on a prevailing rate of "between $50 and $100 per hour" charged by other consulting service companies. However, an average of $3,000 in weekly revenue, multiplied by 52 weeks, would total $156,000, which is less than half of the calculated $360,000 revenue from data analysis and research services. Neither the business plan nor the remainder of the record clarifies how the company could earn $360,000 from data analysis and research services in the first year of operations by charging an average of $3,000 per week for those services. Rather, to earn $360,000 from data analysis and research services within the first 52 weeks, the startup medical consulting services company would need to average $6,923 per week, which substantially exceeds the business plan's stated estimation that "the weekly cost for these services ranges from $2,000 to $4,000."
In tum, the plan states that the company would charge "an average price of $4,500 per hospital for developing and administering patient-specific surveys," which would require the company to provide such surveys for 53 hospitals to total $238,500. Similarly, the plan specifies that its calculation of $174,720 from standardizing medical practice is based on "set[ting] an average price of $210 per hour for these services," again based on a prevailing rate charged by other consulting service companies. To earn a total of $174, 720 at a rate of $210 per hour requires the company to provide such services for 832 hours, or an average of 16 hours per week for 52 weeks. However, neither the business plan nor the remainder of the record substantiates why the company anticipates providing surveys for such a specific number of hospitals, as opposed to any other number of hospitals, and why the company anticipates providing medical practice standardization services for an average of 16 hours per week, as opposed to any other number of average hours.
As another example of arbitrary and unsubstantiated information, the business plan calculates rent expenses totaling $35,952, utilities expenses totaling $2,016, and generalized insurance expenses totaling $4,416 in the first year of operations. However, as noted above, neither the business plan nor the remainder of the record indicates where the company's place of business would be located beyond somewhere abstractly "in California." Instead, the plan indicates that the rent expenses of $35,952 derive from multiplying a stated average office rental cost in California of $3 7.45 per square foot by 960 square feet, which in tum is based on a recommendation of providing "at least 120 square feet per employee" and a staff of eight. Likewise, the plan explains that the utility expenses of $2,016 derive from multiplying an assumed 960 square feet by $2.10 per square foot, "[t]he average cost of utilities for commercial buildings." The plan further states that the insurance expenses of $4,416 derive from multiplying a stated average cost of $368 by 12 months. However, although the plan provides URLs for the stated average rates, the record does not contain copies of the referenced publications. Therefore, the record does not establish whether such publications provide the information indicated in the business plan. Given that the record does not specify the building or even the municipality in which the company would operate, the business plan's anticipation of such specific rent, utilities, and generalized insurance expenses-as opposed to any other amounts-are arbitrary and unsubstantiated. The financial information in the business plan is particularly important here, given the company's slim anticipated profit margin. The plan calculates total operating expenses of $701,384 in the first year of p. 4 operations, with an additional $21,551 in taxes incurred, subtracted from anticipated revenue of $773,220, for a net profit of $50,285. However, as noted above, the business plan's calculation of $360,000 revenue from data analysis and research services exceeds the actual amount that would correctly result from the inputs apparently used to reach that calculation-$3,000 in weekly revenue multiplied by 52 weeks-by more than $200,000. Therefore, the financial information in the business plan indicates that the company would incur a net loss of approximately $150,000, not a net profit of approximately $50,000, during the first year of operations. The business plan does not provide financial calculations for any other year of operations in which the Petitioner's startup medical consulting services company may operate without a net loss.
The extent of the arbitrary, unsubstantiated, and inconsistent information in the business plan casts doubt on the veracity of the business plan, specifically its financial information, undermining the reliability and sufficiency of the business plan specifically, and the totality of the record more generally. See Matter of Ho, 19 I&N Dec. at 591. Because the reliability and sufficiency of the business plan is undermined, the reliability and sufficiency ofits other financial information, including revenue estimations and anticipated expense calculations, such as the number of workers the startup medical consulting services company may need-and afford-to employ, are similarly undermined. The veracity of the financial information in the record is material to the first Dhanasar prong because it addresses the extent to which the proposed endeavor may have the potential to employ U.S. workers and have other positive economic effects, and indeed what those economic effects may be, which are factors in determining whether an endeavor may have national importance. See Matter ofDhanasar, 26 I&N Dec. at 889-90.
The record also contains copies of publications providing generalized information regarding healthcare and an opinion letter.Support letters generic or unsupported
SCOPS acknowledged the Petitioner's description of the proposed endeavor and information in the record, and concluded "that the [P]etitioner's proposed endeavor is of substantial merit," as required in part by the first Dhanasar prong. See id. SCOPS also determined that [the Petitioner is] wellpositioned to advance the endeavor," as required by the second Dhanasar prong. However, SCOPS observed that the record does not establish that the proposed endeavor would have national importance, as also required in part by the first Dhanasar prong. See id. More specifically, SCOPS explained that, although the proposed endeavor may benefit particular clients and patients, the record does not establish that the proposed endeavor would have national or even global implications within a particular field. SCOPS also noted that, without even specifying a location within California where the company would operate, the record does not establish where the endeavor may cause economic effects, let alone whether those effects may be substantial.Job creation or economic claims unsupported SCOPS further concluded that the record does not satisfy the third Dhanasar prong. See id.
Because we determine that the record does not establish whether the proposed endeavor may have national importance, which is dispositive, we reserve our opinion regarding whether the proposed endeavor has substantial merit, as required in part by the first Dhanasar prong, and whether the record satisfies the second and third Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). p. 5 On appeal, the Petitioner first asserts that "USCIS did not articulate the specific reasons for its denial decision as required under 8 C.F.R. § 103.3(a)(l)(i)." The Petitioner also states on appeal that SCOPS "improperly fixated on economic benefit as the primary, if not exclusive, factor in evaluating national importance." Rather, the Petitioner reiterates on appeal that the proposed endeavor "has national importance because it will broadly enhance societal welfare, as his work on drug repositioning will significantly accelerate the development cycle of new medications for untreatable diseases, thereby reinforcing U.S. position [sic] as leader in global healthcare innovation." He also restates on appeal that the proposed endeavor "has national importance because it will result in meaningful economic savings, as his work on drug repositioning is projected to save billions in R&D expenditures will improving medication affordability for patients across the United States." He farther reasserts on appeal that the proposed endeavor "has national importance because it will advance medical technologies to accurately diagnose conditions and personalize treatment plans for patients, thereby strengthening U.S. leadership in precision medicine." In support of these assertions on appeal, the Petitioner cites his own personal statements, the business plan addressed above, copies of publications in the record providing generalized information regarding healthcare, and the opinion letter submitted in response to SCOPS' RFE.
In determining national importance under the first Dhanasar prong, the relevant question is not the importance of the industry, field, or profession in which an individual will work; instead, to assess national importance, we focus on "the specific endeavor that the [individual] proposes to undertake" and "we consider its potential prospective impact," looking for "broader implications." Matter of Dhanasar, 26 I&N Dec. at 889. Dhanasar provided examples of endeavors that may have national importance, as required by the first prong, having "national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances" or those with "significant potential to employ U.S. workers or ... other substantial positive economic effects, particularly in an economically depressed area." Matter ofDhanasar, 26 I&N Dec. at 889-90.
First, the record does not support the Petitioner's assertion on appeal that SCOPS "did not articulate the specific reasons for its denial decision as required under 8 C.F.R. § 103.3(a)(l)(i)." On the contrary, in the Petitioner's brief submitted on appeal he quotes language from SCOPS' decision that articulates specific reasons why the record does not satisfy the first and third Dhanasar prongs. Therefore, SCOPS articulated specific reasons for denial in its decision, and the Petitioner appears to have recognized at least some of the specific reasons that SCOPS articulated, given that he quoted verbatim examples of specific reasons for denial in SCOPS' decision.
Similarly, the record does not support the Petitioner's assertion on appeal that SCOPS "improperly fixated on economic benefit as the primary, ifnot exclusive, factor in evaluating national importance." Although SCOPS addressed whether the proposed endeavor may have substantial positive economic effects, as contemplated by the first Dhanasar prong, that analysis responds to the Petitioner's assertions that the proposed endeavor would have economic benefits. For example, as noted above, the Petitioner reasserts on appeal that the proposed endeavor "has national importance because it will result in meaningful economic savings, as his work on drug repositioning is projected to save billions in R&D expenditures will improving medication affordability for patients across the United States." Therefore, SCOPS' analysis of the proposed endeavor's potential economic benefits properly addressed issues specifically raised by the Petitioner. Moreover, in addition to addressing whether the p. 6 proposed endeavor may have substantial positive economic effects, SCOPS also addressed other issues material to determining whether the proposed endeavor may have national importance. For example, SCOPS observed that the record does not establish that "the [P]etitioner's specific proposed endeavor would have any implications beyond the business, its employees and clients, and any individuals and entities with whom they work, to impact the field, industry, or the economy more broadly at a level commensurate with national importance" rather than providing "[i]ndividually tailored services [that] help serve specific needs of clients." As another example, SCOPS explained that several specifically identified publications in the record that provide generalized information regarding healthcare do not inform how the specific endeavor the Petitioner proposes to undertake may have national importance because "the articles do not discuss any details relating to the specific endeavor and its impact rather than that it is in the broader field."Proposed endeavor too vague
Turning to the Petitioner's other assertions on appeal, as SCOPS observed, the copies of publications in the record providing generalized information regarding healthcare do not reference the Petitioner and the specific endeavor he proposes to undertake. Because the copies of publications in the record providing generalized information regarding healthcare do not reference the Petitioner and the specific endeavor he proposes to undertake, they do not inform how the specific endeavor the Petitioner proposes to undertake may have national or even global implications within a particular field, significant potential to employ U.S. workers, or other indicia of national importance, and we need not address them farther. See Matter ofDhanasar, 26 I&N Dec. at 889-90.
In tum, the record contains an opinion letter from a vice president ofl As a matter of discretion, we may use opinion statements submitted by a petitioner as advisory. Matter ofCaron Int 'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less weight if it is not in accord with other information in the record or ifit is in any way questionable. Id. We are ultimately responsible for making the final determination regarding an individual's eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Fed. R. Evid. 702 (providing that an expert opinion may "help the trier of fact to understand the evidence or to determine a fact in issue," not that it is evidence of fact itself). We note again that the business plan's arbitrary, unsubstantiated, and inconsistent information undermines the reliability and sufficiency of the totality of the record, including this opinion letter, for the reasons explained above. See Matter ofHo, 19 I&N Dec. at 591.
The opinion letter references the Petitioner and it abstractly acknowledges the Petitioner's "various successes" in the past. The letter also submits the conclusory and unsubstantiated assertion that the Petitioner "will advance significant and nationally influential projects in drug repurposing and pharmaceutical distribution." The letter states that it is based on the author's "review of relevant literature and understanding of [the Petitioner's] past accomplishments and future plans," without identifying any particular literature the author reviewed in order to form his opinions. Rather than assisting us in understanding evidence in the record or determining a fact in issue, the opinion letter provides additional unsubstantiated and generalized statements, such as:
- The U.S. is currently facing a public spending crisis in pharmaceutical development, with the U.S. government's National Institutes of Health (NIH) spending over $1.4 billion on every approved novel drug.
- Big Pharma in the U.S. has effectively monopolized the pharmaceutical development and distribution market, and has entirely focused its efforts on developing new compounds, eschewing drug repurposing in favor of costly and more time consuming clinical trials.
- Given that major pharmaceutical companies in the U.S. are currently employing relatively expensive drug development procedures, they tend to charge wildly high prices to U.S. consumers to compensate for the cost of clinical trials.
Because the opinion letter does not provide citations for its assertions regarding healthcare beyond an abstract reference to "relevant literature," its statements are questionable; therefore, it bears minimal probative value. See Matter ofCaron Int'l, Inc., 19 I&N Dec. at 795. Moreover, even to the extent that the opinion letter may have probative value in general, given that it provides limited and unsubstantiated assertions regarding the Petitioner and the specific endeavor he proposes to undertake, it does not establish how the specific endeavor the Petitioner proposes to undertake may have national or even global implications within a particular field, significant potential to employ U.S. workers, or other indicia of national importance. See Matter ofDhanasar, 26 I&N Dec. at 889-90.
We recognize the importance of progress in science, technology, engineering, and mathematics (STEM) fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security. See generally 6 USCIS Policy Manual F.5(D)(4), https://www.uscis.gov/policy-manual. However, as in all cases, a proposed endeavor implicating a STEM field must demonstrate both substantial merit and national importance, such as by having national or even global implications within a particular field, beyond merely being in a STEM field. See generally id.; see also Matter ofDhanasar, 26 I&N Dec. at 889-90.
To the extent that the record may be deemed reliable and sufficient, despite the material deficiencies addressed above, see Matter ofHo, 19 I&N Dec. at 591, it indicates that the proposed endeavor of operating a startup medical consulting services company may benefit the Petitioner's company, its clients, customers, and business partners, and the patients served by those clients, customers, and business partners. However, the record does not establish how the Petitioner's startup medical services company-apparently operating at a net loss of approximately $150,000 in the first year of operations-would have national or even global implications within the field of pharmaceutical research and development, healthcare consulting services, or any other particular field, such as those resulting from certain medical advances. See Matter of Dhanasar, 26 I&N Dec. at 889-90. The business plan states many times that the NIH "could save more than $1 billion on each drug developed through repurposing efforts, reducing the per-drug cost from $1.4 billion to just $300 million." However, neither the business plan nor the remainder of the record substantiates that assertion. Relatedly, the business plan specifically-and the Petitioner's assertions more generally-indicate an apparent success rate of 100 percent, without acknowledging that some attempts to repurpose pharmaceuticals may fail and result in no cost savings. Moreover, even to the extent that some companies may research and develop repurposed pharmaceuticals with lower expenses than novel pharmaceuticals' research and development expenses, the record does not establish that novel pharmaceutical research and development would cease altogether, casting doubt that the average cost to research and develop pharmaceuticals would in fact decrease by nearly 80 percent, as asserted without substantiation.
More to the point, the record does not establish what effect, if any, the specific endeavor the Petitioner proposes to undertake may have within the field of pharmaceutical research and development, healthcare consulting services, or any other particular field, beyond possibly contributing to some unsubstantiated extent to cost-reduction, time-to-market, personalization, and other trends throughout the respective fields, also created by some unspecified number of other medical consulting services companies and medical research entities. As explained above, the relevant question in determining national importance under the first Dhanasar prong is not the importance of the industry, field, or profession in which an individual will work; instead, to assess national importance, we focus on the specific endeavor a petitioner proposes to undertake. Matter ofDhanasar, 26 I&N Dec. at 889. In tum, even ifthe business plan or the remainder ofthe record identified where the Petitioner's startup medical consulting services company would operate beyond generally "in California," it does not establish the significance of employing eight total workers in the occupational categories noted above, with annual salaries at or near $70,000 in such a location; therefore, the record does not establish whether the proposed endeavor may have significant potential to employ U.S. workers. See id. Similarly, even if the business plan were reliable and sufficient, which it is not for the reasons explained above, its inconsistent financial projections indicate that the company would operate at a substantial net loss in the first year ofoperations, with no financial projections for the following years, which casts doubt on whether the proposed endeavor may have other substantial positive economic effects, regardless of the location in which the company would operate.
In summation, the Petitioner has not established that the proposed endeavor has national importance, as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver.
Conclusion
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect ofthe decision. 8 C.F.R. § 103.5(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 of the Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.