The Petitioner, an entrepreneur and computer systems engineer, seeks classification as a member of the professions holding an advanced degree. See section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § l 153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this employment based second preference (EB-2) classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § l 153(b)(2)(B)(i).
Service Center Operations (SCOPS) denied the petition, concluding that the record did not establish that a waiver ofthe required job offer, and thus ofa 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 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. Section 203(b )(2)(B)(i) of the Act. An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent of a master's degree. Id. Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
1 8 C.F.R. § 204.5(k)(2). Once a petitioner demonstrates eligibility for the underlying EB-2 classification, the petitioner must then establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." Id.
Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion,2 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 their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Id. at 889.
Analysis
The Petitioner's proposed endeavor is to serve as general manager of his own information technology (IT) services company (the Company), with locations inl IFlorida, andl lTexas.
The Company will provide IT services, remotely and in person, to small and medium-sized enterprises, in five core areas: server monitoring, IT help desk, network access control, IT training, and other IT services and consulting. SCOPS denied the petition, concluding that although the Petitioner is eligible for EB-2 classification as an advanced degree professional, he did not establish that a waiver of the job offer, and labor certification requirement, is in the national interest. The Petitioner's appeal asserts he has established his eligibility for a national interest waiver of the job offer, and labor certification requirements, by a preponderance of the evidence.
A. Member of the Professions Holding an Advanced Degree
To find the Petitioner is eligible for EB-2 classification, SCOPS relied on an educational evaluation that determined the Petitioner has the equivalent of a U.S. master's degree in computer networks based on a combination of his bachelor's degree in computer networks and over five years professional experience. In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied by"[a ]n official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may 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." 8 C.F.R. § 204.5(k)(3)(i)(B). A U.S. baccalaureate degree is generally found to require four years of education. See Matter ofShah, 17 I&N Dec. 244, 245 (Reg'l Comm'r 1977).
The Petitioner submitted his technologist degree from the ~--------
.... inI l Brazil ( conferred~o_n_J_a_n_u_a-ry-5-,_2_0_1-2)_;_a_n-ev_a_l_u_at-io_n_o~f training, education, and experience from Highstone Client Services (Highstone evaluation) finding that "he satisfied requirements substantially similar to those required toward the completion of a Bachelor of Computer Networks from an accredited institution of higher education in the United States;" and a document titled "school records" showing his coursework in the subject area "technology in computer networks" atl Iduring five semesters from 2009 to 2 See Flores v. Garland. 72 F.4th 85. 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). p. 3 2011. We note that because th .______________,and.___________.appear to be separate educational institutions, in any future proceedings, the Petitioner must establish the relationship between the two and his coursework and degrees. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) ( standing for the proposition that a petitioner must resolve any inconsistencies in a record with objective evidence pointing to where the truth lies.) This is particularly important here because the Highstone evaluation highlighted that the Petitioner "completed his course of studies at I ~ yet no course transcript from that institution was provided. Id. As such, the evidence is insufficient to establish the Petitioner's educational background. To evaluate whether the Petitioner's technologist degree issued by._______________ .is the equivalent of a U.S. bachelor's degree, we consulted the Electronic Database for Global Education (EDGE), created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). EDGE indicates that the title of technologist "represents attainment of a level of education comparable to 2 to 3 years of university study in the United States." See AACRAO, Titulo de Tecn6logo (Title of Technologist), https ://www.aacrao.org/ edge/ country/ credentials/ credential/brazil/t%C3 %ADtulo-de-tecn %C3 %B3 logo-( title-of-technologist). EDGE does not indicate that the Petitioner's technologist degree is the foreign degree equivalent of a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent Id. As such, AACRAO's EDGE does not support finding the Petitioner earned the foreign equivalent of a U.S. bachelor's degree. Furthermore, because the Highstone evaluation concluded that the Petitioner "satisfied requirements substantially similar to those required toward the completion of a Bachelor of Computer Networks from an accredited institution ofhigher education in the United States," the evaluation is not in accord with the information in EDGE. See Matter ofCaron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (standing for the proposition that we may, in our discretion, use opinion statements submitted by a petitioner as advisory but, where an opinion is not in accord with other information or is in any way questionable, we are not required to accept or may give less weight to that opinion).
We note farther the Highstone evaluation is not in accord with the information provided in the "school records." For example, the evaluation highlighted only seven courses taken by the Petitioner towards completion of his technologist degree to conclude that these "studies are a requisite component of a Bachelor's Degree from an institution of higher education in the United States;" however, there is no explanation provided to understand why those particular courses were highlighted among the others. Moreover, ar stated above, the Highstone eyj:luation states that the Petitioner "completed his course of studies at.__ ___________~however, no transcript from this educational institution was provided and the record does not contain evidence showing what information the evaluator was relying on to render its conclusion.3 Therefore, the basis for the Highstone evaluation's conclusion that the Petitioner's technologist degree is the foreign equivalent of a U.S. bachelor's degree is not sufficiently supported by the record or EDGE, and we need not credit its conclusion. See Matter of Caron Int'!, Inc., 19 I&N Dec. at 795. For the reasons discussed above, the Petitioner has not established he possesses the foreign equivalent of a U.S. bachelor's degree, as required. 3 We note that the Petitioner's "school records" show that he was exempt from many courses, however because he did not provide a course aauscrjnt from the I I we are unable to dete1mine whether these courses were completed at lor somewhere else.
Additionally, as required by 8 C.F.R. § 204.5(k)(3)(i)(B), the Petitioner must document his postbaccalaureate experience "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." The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971).Not eligible at the time of filing Here, the Petitioner has not established over five years of progressively responsible, post-baccalaureate experience because the letters he provided are insufficient to establish his job duties.Five years of progressive experience not documented Two of the letters concern positions that are not related to the field of computer networks and are thus not evidence of progressive experience in the specialty.Claims not backed by documents Moreover, the regulation at 8 C.F.R. § 204.5(g)(l) provides in pertinent part that "[e]vidence relating to qualifying experience or training shall be in the form ofletter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the [individual] or of the training received." The letter froml I lists the titles of five IT positions held by the Petitioner but provides no duties; thus, it is insufficient to assess his credentials under the plain language ofthe regulation. Id. Likewise, the letter from I I I Istates that since A ril 2020 to the resent the letter is dated Jul 10, 2020), the Petitioner performed the work of a '.____________________.Admin Support Representative," however no duties are provided for this role, and the time frame (just 4 months) is insufficient to establish the required five years of post-baccalaureate experience. Id.
For the above stated reasons, we disagree with the Director's determination that the Petitioner is eligible for EB-2 classification as a member ofthe professions holding an advanced degree. However, because the Petitioner was not put on notice of this issue, his eligibility for EB-5 classification does not form the basis of our dismissal. Further, because the resolution ofthe Petitioner's eligibility under the first Dhanasar prong is dispositive of this appeal, we need not remand the matter for further consideration of his eligibility for EB-2 classification as an individual of exceptional ability. B. First Dhanasar Prong: Substantial Merit and National Importance The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake and its "potential prospective impact." Matter ofDhanasar, 26 I&N Dec. at 889. An endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. The term "endeavor" is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation. See generally 6 USCIS Policy Manual F.5(D)(l), https://www.uscis.gov/policy-manual. For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer. Id. Here, we agree with SCOPS that the proposed endeavor is of substantial merit because it is entrepreneurial in nature. However, for the reasons discussed further below, the Petitioner has not established the proposed endeavor's national importance.
In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. 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." Matter ofDhanasar, 26 I&N Dec. at 889. We p. 5 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. For entrepreneurial endeavors, in determining an endeavor's national importance, we also consider additional factors such as revenue growth, revenue generation, and job creation in our analysis. See generally 6 USCIS Policy Manual, supra, at F.5(D)(4), ("Specific Evidentiary Considerations for Entrepreneurs").
Further, USCIS recognizes the importance of progress in 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. We may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners. See generally 6 USCIS Policy Manual, supra, at F.5(D)(2).
SCOPS determined that the Petitioner did not establish the proposed endeavor is of national importance due to the lack of corroborating evidence to establish the endeavor's claimed economic impacts.Job creation or economic claims unsupported Further, SCOPS noted that even ifthe endeavor created six jobs by the Company's fifth year of operation, that is an insufficient number of jobs to rise to the level of national importance as contemplated by Dhanasar. Lastly, SCOPS noted that the business plan was outdated because more than two years had passed between the date of the business plan (February 2021) and the filing of the Petitioner's national interest waiver petition in July 2023.
On appeal, the Petitioner submits a brief: which generally alleges that SCOPS "did not apply the proper standard of proof in this case, instead imposing a stricter standard, and erroneously applied the law, to [his] detriment ...." The standard of proof governing immigration benefit requests is "preponderance of evidence." Matter of Chawathe, 25 I&N Dec. at 375-76. To determine whether a petitioner has met their burden under the preponderance standard, we evaluate whether a petitioner's claims are "more likely than not" or "probably" true, but also consider the quality (including relevance, probative value, and credibility) of the evidence. Id. at 376; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). SCOPS issued two requests for evidence, explaining the deficiencies and concerns in the Petitioner's initial filing and providing a non-exhaustive list of documentation and evidence the Petitioner could submit to address these deficiencies. Therefore, SCOPS followed the applicable regulations and procedures in adjudicating this petition, and the Petitioner has not established his petition was held to a higher standard of proof 8 C.F .R. § 103 .2(b )(8).
The Petitioner further asserts that his endeavor is of national importance because of its economic impact, and because it aligns with our national interest in promoting technological development, economic growth and job creation. The Petitioner asserts that the Company's services will help his clients optimize their business functions, which will directly impact the domestic market "as improved industry patterns culminate in higher business demands and an increase in the creation of new jobs and workforce dependability." The Petitioner further contends his endeavor aligns with our national security because attracting talented STEM professionals, like him, will enable the United States to p. 6 counter "China's rapid technological strides." Finally, the Petitioner explains that because he will focus on training employees in advanced IT and telecommunications technologies, his endeavor will not only create jobs but also "enhance the skill set of American workers," which is crucial for maintaining the U.S.' competitive edge in the "global technology market."
Upon de novo review, we conclude the Petitioner has not sufficiently established that the proposed endeavor has significant potential to employ U.S. workers or would have other substantial positive economic effects, particularly in an economically depressed area, such that it could be considered of national importance.
The Petitioner's business plan projects that the Company will have the following economic growth, revenue and job creation impacts over its first five years of operations:
- Opening of a second location inl ITexas, by its fourth year of operations
- Creation of six foll and part time jobs in its two locations
- Personal initial investment by the Petitioner and his wife (as co-owners) of $40,000 and reinvestment of the Company's profit/revenue totaling $220,000
- Generation of $823,000 in total wages for its six employees
- Generation of $3 .51 million in total revenue
- Generation of $440,568 in net income
While these assertions of economic impact have been considered, we agree with SCOPS that because the Petitioner's business plan is dated February 2021, the above projections appear outdated. See Matter of Chawathe, 25 I&N Dec. at 375-76. On appeal, the Petitioner does not address SCOPS concerns or submit updated economic revenue, job creation, or economic impact projections.4 Id. Furthermore, the business plan provides an insufficient objective basis to establish that these projections are realistic. Id. The business plan explains that both of the Company's offices (in I IFlorida, andl ITexas) will be located in Small Business Administration (SBA) qualified HUBZones. However, the Petitioner does not submit evidence to establish its participation in the SBA HUBZone program or otherwise demonstrate that his endeavor will have substantial positive economic effects, particularly in an economically depressed area.
Moreover, we note that for purposes of establishing the Company's prospective economic impact, the business plan conflicts with other evidence in the record. Notably, the business plan does not contain any information pertaining to the two additional investors who pledged $70,000 in the Company. Instead, the business plan only mentions the Petitioner and his wife as investors contributing $40,000 in initial investment. This inconsistency has not been resolved in the record.Inconsistencies in the record See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) (standing for the proposition that any inconsistencies in a petitioner's evidence may lead to reevaluation ofthe remaining evidence offered in support of the visa petition.) For all these reasons, while we find that the Petitioner's entrepreneurialism and intent to 4 We note, for example, that the business plan states the "First Year of Operation ( estimated to be in 2021 )." That would mean that by its terms, the Company should be in its fifth year of operation, and all economic revenue, economic growth and job creation projections should be at the levels indicated. Furthermore, the business plan indicates that by its fourth year of operation (2024), the second office in Texas would already be operational. However, the Petitioner does not provide any evidence to substantiate these claims. p. 7 invest his own capital in the Company is of substantial merit, the business plan is insufficient evidence to establish that the endeavor is of national importance based on its economic impact.Plan or projections not corroborated
Next, we acknowledge the Petitioner submitted four subcontractor agreements, signed on February 5, 2024, between the Company and other entities for IT services. However, the agreements are insufficient to show that the Company has the potential for revenue growth, revenue generation, or job creation because they were executed after the filing of the petition. This petition was filed in July 2023, and the Petitioner must establish his eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l). Further, in an advisory opinion provided by Dr. I Iof Highstone Client Services, the writer opines that the endeavor is of national importance because U.S. businesses seeking to do business in Brazil, will benefit from the Petitioner's expertise "given the current context of political turbulence and challenging economic situation" in Brazil. However, the letter does not explain the connection between the proposed endeavor's IT activities and the projected job creation, revenue growth, or revenue generation in the United States. Without sufficient information or evidence regarding any projected U.S. economic impact attributable to the endeavor, the advisory letter does not establish that benefits to the U.S. economy resulting from the Petitioner's endeavor would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Matter ofDhanasar, 26 I&N Dec. at 890; see also Matter ofCaron Int 'l, Inc., 19 I&N Dec. at 795 (Comm'r 1988).
SCOPS correctly determined that the Petitioner's past professional endeavors, as evidenced by multiple letters of reference written by former colleagues, are the focus of Dhanasar 's second prong, where we examine whether a petitioner is well-positioned to advance the proposed endeavor. See Matter of Dhanasar, 26 I&N Dec. at 890. Here, reference letters provided by IT and business professionals in Brazil explain that the Petitioner is an IT professional with a positive employment record who is held in high regard by his professional network; however, that is not the standard for national importance. For example, a platform and services performance manager in Brazil explains how the Petitioner's prior work showed his "professionalism," which will "greatly enhance any corporation he joins." While his prior work in IT appears commendable, the letters are relevant to prong two of the Dhanasar framework but do not establish the broader implications of his proposed endeavor in the United States or on the IT field as contemplated by Dhanasar.Proposed endeavor too vague See Matter of Dhanasar, 26 I&N Dec. at 890.
We agree with SCOPS that the industry reports and articles provided generally describe the importance of the IT and telecommunications fields but do not focus on the specific proposed endeavor or how it may impact these fields more broadly or discuss any projected U.S. economic impact or job creation attributable to the Petitioner's endeavor, as required under Dhanasar. The industry reports and articles discuss topics such as the importance of immigrant entrepreneurialism, the shortage of STEM and IT professionals in the United States (particularly software developers), and how IT is transforming American workplaces. However, because the information provided does not specifically discuss the Petitioner's proposed endeavor or explain how his endeavor would have broader implications for the United States, the articles are not persuasive. Furthermore, as stated in Dhanasar, in determining whether the proposed endeavor has national importance, the relevant question is not the importance of the field, industry, or profession in which the individual will work; instead, we focus on the "the specific endeavor that the foreign national proposes to undertake." Matter ofDhanasar, 26 I&N Dec. p. 8 at 889. For all these reasons, the articles and industry reports do not establish the Company's national importance.
The Petitioner states that his endeavor has national importance due to the shortage of STEM and IT professionals in the United States, and because it will strengthen our economy and ensure American competitiveness around the globe. While the Petitioner's skills and experience in the IT field could have a positive impact on his future clients or employers, he has not provided sufficient evidence that his endeavor would solve or make an impact on the STEM or IT shortage, such that his endeavor could be considered of national importance.Relied on a labor shortage Moreover, while we have considered the Petitioner's assertion that his proposed endeavor aims to advance STEM technologies and provide IT training, the evidence in the record does not demonstrate that his specific endeavor will help the United States remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners. See generally, 6 USCIS Policy Manual, F.5(D)(2), https://www.uscis.gov/policy-manual (Specific Evidentiary Considerations for Persons with Advanced Degrees in STEM Fields). As such, the Petitioner has not demonstrated that his proposed endeavor will sufficiently extend beyond his future clients and customers to impact the field of STEM more broadly and thus be of national importance as contemplated by Dhanasar.
To illustrate this point farther, we determined in Dhanasar that although a STEM teacher's proposed endeavor had substantial merit, the record did not establish his teaching activities would impact the field of education, beyond the students in his classroom, more broadly. Matter ofDhanasar, 26 I&N Dec. at 893. Similarly, here, the record does not suggest that the Petitioner intends to advance STEM technologies and research in the field of IT, or that the IT training he intends to provide will have a broader impact beyond his customers and clients. For all these reasons, the Petitioner has not established the endeavor's claimed job creation, revenue generation, or economic growth. As such, and for all the above stated reasons, we conclude that SCOPS properly evaluated the evidence in determining the Petitioner did not establish, by a preponderance of the evidence, that his proposed endeavor has national importance.
C. Dhanasar 's Remaining Prongs
SCOPS determined the Petitioner meets Dhanasar 's second prong however no analysis was provided to review that portion of the decision. Because we have determined the Petitioner is not otherwise eligible for this visa classification, we hereby reserve the issue of whether the Petitioner is wellpositioned to advance the proposed endeavor. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision).
SCOPS farther concluded the Petitioner did not establish that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus ofa labor certification.Did not show the waiver outweighs labor certification In so doing, SCOPS addressed the claimed projected economic impact of the Petitioner's endeavor and other factors advanced by him to establish his endeavor's national importance. We adopt and affirm SCOPS' decision regarding the Petitioner's ineligibility under the third Dhanasar prong. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. p. 9 1997) (noting that the practice of adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case).
Conclusion
As the Petitioner has not met the requisite first and third prongs ofthe Dhanasar analytical framework, he has not established 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.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the 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 1-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.