The Petitioner, a financial analyst, seeks second preference immigrant classification as a member of the professions holding an advanced degree, 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 she 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 additional documentation and a briefasserting that she 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 (emphasis added), 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. 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 definition:
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.
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). established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a 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) See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has p. 3 that, on balance, it would be beneficial to the United States to waive the requirements of a job offer
Analysis
As noted above, the Director concluded that the Petitioner qualifies for EB-2 classification as a member of the professions holding an advanced degree. is a professional holding an advanced degree based upon her foreign equivalence of a U.S. bachelor's degree, combined with "evidence o f her work experience in the field." A review o f the record, however, does not support such a conclusion. For the reasons discussed below, we withdraw the Director's conclusion on this issue.
In order to show an individual is a professional holding 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 ofprogressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B).
The record contains an "Evaluation of Training, Education, and Experience" from USA Evaluations which concludes that the Petitioner holds the equivalent o f a master o f business administration degree in finance "based upon a combination ofAcademics and a minimum 5 years Professional experience, as per USCIS." regulation at 8 C.F.R. § 204.5(k)(3)(i)(A). Therefore, we must look to letter(s) from the Petitioner's current or former employers to demonstrate that she has the required five years of progressive post- baccalaureate experience. 8 C.F.R. § 204.5(k)(3)(i)(B).
In response to the Director's RFE, the Petitioner provided a September 6, 2019 letter from the regional sales manager - cash management services ad Iwhich lists her dates of employment as January 3, 2011 through January 9, 2018, her job title as Cash Management Sales Manager, her salary, and eight duties. The letter does not, however, establish that the Petitioner's experience was progressive. 8 C.F.R. § 204.5(k)(3)(i)(B).Five years of progressive experience not documented The Petitioner, therefore, has not demonstrated eligibility for the requested classification as a member ofthe professions holding an advanced degree, as required by section 203(b)(2) of the Act 8 C.F.R. § 204.5(k)(2) We would note that, regarding the Petitioner's remaining claims of eligibility under the Dhanasar analysis, we agree with the Director's ultimate conclusions. For example, regarding the national importance portion of the first prong, although the Petitioner's statements reflect her intention to continue working in her field in the United States, she has not offered sufficient information and evidence to demonstrate that the prospective impact of her proposed endeavor rises to the level of national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise the Petitioner's response was limited to her qualifications as a member of the professions holding an advanced degree. and thus of a labor certification.
Specifically, the Director concluded that the Petitioner The evaluation does not establish that the Petitioner's education alone meets the See Dhanasar, 26 I&N Dec. at 888 -91 , for elaboration on these three prongs.
Although the Director's request for evidence (RFE) also addressed the criteria for an individual of exceptional ability, The evaluator indicates that he relied on the Petitioner's resume for a description of her experience. p. 4 to the level of having national importance because they would not impact his field more broadly. Id. at 893. Similarly, the record in this matter does not demonstrate that the Petitioner's proposed endeavor stands to sufficiently extend beyond her future employer(s) and clients such that it would impact U.S. interests or the financial industry more broadly at a level commensurate with national importance. In addition, she has not demonstrated that her specific proposed endeavor has significant potential to employ U.S. workers or otherwise offer substantial positive economic effects for our nation.Job creation or economic claims unsupported
For the reasons discussed above, we are remanding the petition for the Director to consider whether the Petitioner qualifies for EB-2 classification, the threshold determination in national interest waiver cases. The Director may request any additional evidence considered pertinent to the new determination.
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.