The Petitioner, a business executive, seeks classification as a member of the professions holding an advanced degree or, in the alternative, 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 EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the 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 qualifies 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.
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 nova 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. - p. 2 (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.
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 The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas 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 United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, users 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 a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). eligibility for EB-2 classification, users may, as matter ofdiscretion, 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. grant a national interest waiver p. 3 national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States The Director determined that the Petitioner qualifies as a member of the professions holding an 3 to waive the requirements of a job offer and thus of a labor certification.
Analysis
advanced degree. waiver ofthe requirement ofajob offer, and thus a labor certification, would be in the national interest. The remaining issue to be determined is whether the Petitioner has established that a In Russia, the Petitioner worked forl Icompanies and served as ~ licensed pilot, he flew recreationally and worked for a time as a helico resided in the United States since 2015. He is a art owner of flight school in Florida under the name The Petiti several other apparently aviation-related companies, such as_ _ _ _ _ _ _ _ _ _ _ _ _ _ and I , companies. The Petitioner servedI Ifirst as its chief executive officer (CEO) and then as chief I
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these thfee oraugs The Petitioner holds master's degrees in computer science from the!, !university, and in management from !University of Civil Aviation. .....__ _ _ _ _.
The Petitioner states that he "joined! !in April 2015 as the company's ChiefExecutive Officer." On Form G-325A, analytical framework.
Jbut the record provides little information about the activities of these 4 infonnation officer (CIO). sufficiently demonstrated eligibility for a national interest waiver under the Dhanasar analytical framework. The Petitioner's proposed endeavor centers around his continued activities runninr;I IIn response to a request for evidence, the Petitioner states that he "turnedI Iinto an industry leader in Florida, and he will continue to expand and growl las the company's CIO." He asserts that his "proposed endeavor is executive in nature and has two main managerial objectives. First, he will manage and develop the aviation training program ad ISecond, he will also oversee and manage the development of an innovative training management software application."
A. Substantial Merit and National Importance of the Proposed Endeavor
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar The Petitioner asserts that he reversed! Is decline and turned it into a growing, profitable company, but the record does not show that the company's growth has had, or will have, an economic Biographic Information, the Petitioner states that he was "Unemployed" from May 2015 to March 2017, and became CEO orl lin March 2017. USCIS records do not show that the Petitioner was authorized to work in the United States before 2017.I Ifiled a nonimmigrant petition on the Petitioner's behalf in October 2015, seeking to classify him as an L-1 intracompany transferee; that petition was not approved until March 2017. I Isubsequently filed a nonimmigrant petition to classify the Beneficiary as an H-1B nonimmigrant.
As outlined below, we agree with the Director that the Petitioner has not While we may not discuss every document submitted, we have reviewed and considered each one. Iconsultant. A The Petitioner has which o erates a ated p. 4 impactthatrisestothelevelofnationalimportance. ThePetitionerstatesthatI Ihasaddedjobs under his leadership, but the record does not show that the company has created a significant number ofjobs. I ts 2016 tax return shows that the company paid $50,629 in salaries. Tax and payroll documents from 2017 show significant personnel turnover, with no more than six employees at any given time, and only three employees reported as receiving salaries in early December. A quarterly payroll report shows five employees during the first quarter of 2018, only three of whom earned amounts consistent with continuous, full-time employment. The record shows that the company relies on more contractors than employees, with few of them receiving payments commensurate with year- round, full-time work. Later submissions show three employees in 2019 and 2020, with contractors making up the bulk ofl ts payroll.
On appeal, the Petitioner contends that he has significantly grownl Iadding 14 employees (mostly flight instructors) and 8 aircraft, and attracted "more than $1,000,000" in foreign capital. Setting aside the question of how many of these individuals are year-round employees rather than intermittent contractors, we note that, under section 203(b)(5) of the Act, an investment of $1,000,000 that creates 10 new jobs can qualify a foreign national for a fifth-preference immigrant classification. A comparable level of investment and job creation does not presumptively qualify a foreign national for benefits under a substantially higher-preference classification, along with an exemption from the job offer requirement that, by law, normally attaches to that classification.Job creation or economic claims unsupported
A regional sales director for states that the company has certified! Ias al.____ _. Training Center, and the Petitioner as a.___ _ _ _ _ _ ~Instructor Pilot. Whatever the aggregate impact of training centers nationwide, the Petitioner has not shown thatl ~'s individual participation i n ~ - ~ s program has national importance.
On appeal, the Petitioner states: "Consider thatl Iis able to provide training in Airplanes and Helicopters, you can be sure that this company is completely unique and no one has the same level of service and set of available programs." The Petitioner cites no evidence to support what appears to be a claim that no other U.S. flight school offers training for both airplanes and helicopters. The Petitioner's vague and uncorroborated claims about the uniqueness of his own company have no evidentiary weight in this proceeding.
Some of the Petitioner's specific claims in this area concern credentials that his companies did not possess until after the filing date, such as certification "to train pilots forI I airplanes," and some functions that the Petitioner did not claim or mention prior to the appeal.Not eligible at the time of filing The purpose of an appeal is to establish error in the initial decision. See 8 C.F.R. § 103.3(a)(l)(v). If claims and evidence are never put before the Service Center Director, then the Director cannot have erred by failing to consider those claims and that evidence.
The above claim is one example of several ways in which the Petitioner's initial assertions about the nature of the proposed endeavor changed in response to the request for evidence, and again on appeal. Other modifications to the Petitioner's claims include the assertion that he created "an Air Operator .___ _ _ _ _ _ _ _ __." which began operating in Florida in 2018, and therefore his family of companies can train pilots and then hire them, giving them experience to qualify them for later work with commercial airlines. The Petitioner provides little evidence about this facet of his businesses except to document the existence of companies other tha~ I p. 5 I
In response to a request for evidence, the Petitioner added an element to his proposed endeavor which did not appear in his initial filing. Specifically, the Petitioner states that he will "manage the development of an aviation training software application" which "involves the development of software unique to the needs of aviation training schools." The Petitioner does not explain how this system would result in benefits of national importance. The Petitioner asserts that its systems "will giv9 Ia competitive advantage for recruiting students," which would not be the case if lmade its software systems available to other flight schools. The Petitioner has not shown that it would be in the national interest (as opposed tol ts interest) forl Ito have "a competitive advantage" over other U.S. flight schools.
On appeal, the Petitioner states that the COVID-19 pandemic led him to "come up with a system of how to create and launchl I...which can help pilots during this tough period." The Petitioner submits no evidence about this academy, and little information about it except its web address and the assertion that an unidentified "team ... is working on this project now," "inviting [unnamed] professionals from industry to create theirI Icourses."
The Petitioner's reliance on a significantly modified claim on appeal does not show that he met all eligibility requirements at the time of filing the petition as required by 8 C.F.R. § 103.2(b)(l). New facts cannot establish eligibility as of the filing date. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg') Comm'r 1971).
The Petitioner submits letters and a news article about a pilot shortage in the airline industry, but he also submits a report indicating that "[a]irline hiring is booming," "hiring in numbers not seen since the pre-9/11 era."Relied on a labor shortage The report indicated that the number ofprivate pilots is declining, while the number of airline pilots had been steadily increasing, by thousands per year, since around 2010. The Petitioner does not establish thatl industry staffing trends.
Itrains enough new pilots to have a nationally significant effect on The record does not show that benefits to the regional or national economy resulting from the Petitioner's projects would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Also, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, we find the record does not show that the benefit from the Petitioner's proposed endeavor stands to sufficiently extend beyond his companies to impact the industry more broadly at a level commensurate with national importance. For all these reasons, the Petitioner's proposed work does not meet the fust prong of the Dhanasar framework.
Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the remaining issue, concerning whether, on balance, a waiver of the job offer requirement would be beneficial to the United States. See INS v. Bagamasbad, 429 U.S. 24, We note that, at the time of filing,! !was certified to train private pilots, but its application f~r certjfication to train commercial pilots was still pending. Also, the Petitioner submits materials showing that many ofl........__ __.J's students are nonimmigrants, predominantly from Eastern Europe. Training foreign pilots who then return to their countries of origindoesnotalleviateashortageofU.S.pilots. Rather,itreducesthenumberoftrainingspotsavailabletoprospective U.S. pilots.
25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-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).
Conclusion
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we conclude that he has not established eligibility for a national interest waiver as a matter o f discretion. The appeal will be dismissed for the above stated reasons.
ORDER: The appeal is dismissed.