The Petitioner, a physical fitness trainer, seeks second preference immigrant classification as an individual of exceptional ability, 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 Texas Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree, 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 submits a brief asserting that he requested immigrant classification as an individual of exceptional ability rather than as a member of the professions holding an advanced 1 degree and 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 novo 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, 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.
The Director's decision did not render a detennination regarding the Petitioner's eligibility as an individual of exceptional ability . p. 2 Section 203(b) o f the Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -(A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i) 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:
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Profession means one 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, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating 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, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, 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.
Analysis
A. Member of the Professions Holding an Advanced Degree
We withdraw the Director's determination that the Petitioner qualifies as a member of the professions holding an advanced degree. To qualify as a member ofthe professions, an individual must meet "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 into the occupation." 8 C.F.R. 204.5(k)(2).
The Petitioner has not demonstrated that his occupation, physical fitness trainer, qualifies as a member ofthe professions. The position is not one ofthe occupations listed in section 101(a)(32) of the Act and the Petitioner has not shown that a United States baccalaureate Further, in order to show an individual holds an 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, the 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). The Petitioner has not presented evidence indicating that he meets either of these regulatory requirements. Accordingly, the Petitioner has not established that he qualifies as a member of the professions holding an advanced degree, and the Director's determination on this issue is withdrawn.
B. Exceptional Ability
The Director's decision did not address whether the Petitioner satisfies at least three ofthe six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification. The Petitioner argues on appeal that classification as a member ofthe professions See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest waiver to be discretionary in nature).
Section 101(a)(32) ofthe Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
For example, the U.S. Department of Labor's Occupational Outlook Handbook states: "Fitness trainers and instructors typically need a high school diploma to enter the occupation." See https://www.bls.gov/ooh/personal-care-and- service/fitness-trainers-and-instructors.htm#tab-4, accessed on December 2, 2022. degree or its foreign equivalent is the minimum requirement for entry in his occupation. p. 4 holding an advanced degree "was not the basis for [his] eligibility; it has always been his exceptional ability, instead." On remand, the Director should consider the Petitioner's arguments and evidence to determine if he has met three of the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). If so, the Director should then conduct a final merits determination to conclude whether the Petitioner has achieved the level of expertise significantly above that ordinarily encountered for exceptional ability classification. See 8 C.F.R. § 204.5(k)(2).
C. National Interest Waiver
While the Director concluded that the Petitioner did not establish that a waiver of the required job offer would be in the national interest, the Petitioner must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability. Since the Director's determination of this first threshold requirement was withdrawn, we also withdraw the Director's conclusion that the Petitioner had not established eligibility under prongs one, two, and three of the Dhanasar framework. On remand, the Director should issue a new national interest waiver determination if he finds the Petitioner demonstrates qualification for the underlying EB-2 visa classification as an individual of exceptional ability.
Conclusion
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied the eligibility requirements for classification as an individual of exceptional ability. In addition, the Director should properly apply all three prongs of the Dhanasar analytical framework to determine if the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest.
ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing analysis and entry of a new decision.