The Petitioner, a human resources manager, 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 of the Texas Service Center denied the petition, concluding that the Petitioner had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden of proof 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 o f Christo '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. 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. -(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 p. 2 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.
In addition, 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 ofprogressive 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 [individual] 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, 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.
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.
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionmy in nature).
In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperforming this analysis, USCIS 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 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 Although not addressed in the Director's decision, the record demonstrates that the Petitioner qualifies as a member ofthe professions holding an advanced degree. on appeal is whether 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. For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated eligibility under the first prong of the Dhanasar analytical framework.
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a "Professional Plan" dated June 2021 indicating: to waive the requirements of a job offer and thus of a labor certification.
Analysis
[The Petitioner] has approximately 13 years of experience in working as the owner of a law firm . . . as well as the owner/partner o f a law firm . . . in Brazil. [The Petitioner] significantly contributed to the growth of companies located in ... Brazil, by handling their legal, operations, and administrative matters, including those related to human resources administration and policies.
[The Petitioner's] endeavor is to contribute to U.S. businesses in various industries by helping them with a variety of human resource matters, including the implementation of policies to increase staff inclusivity and diversity. Furthermore, she aims to contribute to the advancement and improvement since the U.S. already has workplace safety laws in place.
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
In the future, [the Petitioner] plans to create her own U.S. human resources consulting company to provide such services. Initially, consulting services will be offered exclusivelybyher. Inthelongterm-approximately5years-shewillbeabletotransfer her knowledge and experiences to other professionals in the area of human resources .... Inadditiontoconsultancyservices,sheplanstohavehercompanydeliveringtraining and lectures to increase employee awareness regarding multiple critical themes related to the work environment. The consulting services will be provided at the clients' locations. [The Petitioner] and her staff will visit various workplaces to learn about difficulties they may be experiencing regarding employee relations or human resources in general.
In response to the Director's notice of intent to deny (NOID), the Petitioner submitted a "Personal Plan" dated November 2020 indicating:
[The Petitioner]'s endeavor is to contribute to U.S. businesses in various industries by helping them with a variety of administrative and human resource matters, including the implementation of policies to increase staff inclusivity and diversity.
[The Petitioner's] advanced qualifications make her well positioned to pursue her significant endeavor. Her industry knowledge, experience, and industry skills will play a significant role in providing business administration and human resources services to organizations operating in a variety o f industries.
I particularly in an economically depressed area, for instance, may well be understood to have national importance." Id. at 890. Throughout the record and on appeal, the Petitioner emphasizes her "vast experience," "extensive educational background and professional experience," and "extensive professional experience." The Petitioner's experience and abilities in her field relate to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that she proposes to undertake has national importance under Dhanasar's first prong.
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to evidence documenting the "potential prospective impact" of her work. On appeal, the Petitioner reasserts that she "presented evidence and a detailed description that my venture has national importance and potential prospective impact, complying with Prong 1." Specifically, the Petitioner hi hli hts recommendation letters from her colleague L Iand clients I I the aforementioned business plans; and an expert
Petitioner as a consultant on safety standards and accident prevention for her glass company. Iemployed the Petitioner to represent her window manufacturing company in a labor law dispute. The aforementioned letters of support, as well as others not discussed in this decision, detail the Petitioner's effectiveness and skills in her previous work as a labor lawyer in Brazil, but they do not address the national importance of her proposed endeavor.
Similarly, in offering his opinion regarding the national importance aspect ofthe Petitioner's proposed endeavor,! Iasserts that "the United States would greatly benefit from the expertise and skills ofan experienced human resources specialist and legal adviser such as [the Petitioner], who has extensive knowledge and expertise in legal consulting and human resources in Brazil." As stated, the Petitioner's knowledge, skills, and experience in her field relate to the second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that she proposes to undertake has national importance under Dhanasar 's first prong. The Petitioner has not offered sufficient information and evidence to corroborate her assertions 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 to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, the Petitioner's plans and supporting letters did not demonstrate, for instance, how her human resources management services stand to sufficiently extend beyond the businesses that might employ her, to impact the industry or the U.S. economy more broadly at a level commensurate with national importance.Evidence submitted too late
Furthermore, the Petitioner has not established that the specific endeavor she proposes to undertake has significant potential to employ U.S. workers or otherwise offers substantial positive economic effects for our nation.Job creation or economic claims unsupported Although on appeal the Petitioner emphasizes that her endeavor "has strong potential to generate direct and indirect jobs for the American economy" as "[t]he future business intends to employ, at the end of the fifth year, 8 workers directly," the Petitioner's documentary evidence does not support her assertions;I Idoes not mention any potential job numbers, and neither he nor the Petitioner demonstrates how her proposed endeavor would impact unemployment levels, or details any revenue benefits for national or regional areas. Without sufficient information or evidence regarding any projected U.S. economic impact or job creation attributable to her future work, the record does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's human resources management position would reach the level o f "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed endeavor does not meet the first prong of the Dhanasar framework.
Because the documentation in the record does not establish the national importance of her proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstratedeligibilityforanationalinterestwaiver. Furtheranalysisofhereligibilityunderthesecond As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude that she has not demonstrated that she 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, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.