The Petitioner, a chef and entrepreneur in the restaurant industry, seeks second preference immigrant classification (EB-2) as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 immigrant 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 record did not establish 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 pursuant to 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 of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
Law
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having a degree of expertise significantly above that ordinarily encountered in the field.
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest."
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as matter of discretion,3 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.
Analysis
A. Exceptional Ability
The Petitioner stated he "is a professional of exceptional ability, with a degree of expertise significantly above that ordinarily encountered in the business sector." However, the Director did not address the underlying EB-2 classification. In the decision, the Director stated the Petitioner "does not assert nor does the record establish that he is eligible for the EB-2 classification as a member of the professions holding an advanced degree," and indicated that "he must establish that he qualifies as an individual of exceptional ability." Later in the decision, the Director stated that "USCIS will discuss if the beneficiary qualifies for the requested classifications as a member of the professions holding an advanced degree or as an alien of exceptional ability," However, the Director did not provide analysis as to either underlying EB-2 classification. On appeal, the Petitioner contends that the Director erred in classifying him as an advanced degree professional and asserts that he is an individual of exceptional ability.
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating qualification for the underlying EB-2 visa classification. While we agree with the Director's ultimate conclusion that the Petitioner did not establish that a waiver of the required job offer would be in the national interest, it is appropriate to remand the matter because the Director did not make an initial determination as to whether the Petitioner qualifies as an individual of exceptional ability. 4 Regarding the Petitioner's claim that he is an individual of exceptional ability, the Director should first determine whether the Petitioner meets at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii), and if so, then conduct a final merits determination.Exceptional ability not established
Evidence in the form ofletter(s)from current or former employer(s) showing that the individual has at least ten years offull-time experience in the occupation for which he or she is being sought.
8 C.F.R. § 204.5(k)(3)(ii)(B).
The plain language ofthe regulation requires that letter(s) 1) be from current or former employers and 2) establish ten years offitll-time experience in the occupation (emphasis added).
To establish eligibility for this criterion, the Petitioner submitted an employment letter showing that he has worked for the company, I Iin a foll-time basis from March 2005 to October 2019. Considering the foregoing, the Director should determine whether the Petitioner has sufficiently established "at least ten years of foll-time experience in the occupation" as required by the regulation.
Evidence of membership in professional associations.
8 C.F.R. § 204.5(k)(3)(ii)(E).
The regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as an occupation listed at section 10l(a)(32) ofthe Act, 8 U.S.C. § 1101(a)(32), 5 or an occupation whose minimum requirement for entry is a U.S. baccalaureate degree or its foreign equivalent.
In support of the criterion, the Petitioner provided receipts as evidence that he is a member of the International Association of Culinary Professionals (IACP) and that he pays an annual membership fee. In addition, he submitted a "Statement" from the chairman of The Panela De Barro Institute of Gastronomy as evidence that he is a contributing member of this organization. The Director should consider whether the Petitioner's submission, without any supporting evidence, such as the membership requirements, is sufficient to establish that IACP and The Panela De Barro Institute of Gastronomy are professional organizations.
Evidence ofrecognition for achievements and sign[ficant contributions to the industry or.field by peers, governmental entities or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). In support of this criterion, the Petitioner submitted letters of recommendation from his local government officials, an expert opinion letter, and copies of certificates and awards. Considering the foregoing, the Director should determine whether the Petitioner has sufficiently established he has been recognized for achievements and significant contributions to his industry or field, as required under the criterion.
B. National Interest Waiver
In addition, while we agree with the Director that the Petitioner did not establish he merits a national interest waiver, we also agree with the Petitioner that the Director's decision does not provide adequate analysis under the three prong Dhanasar framework.
An officer must fully explain the reasons for denying a visa petition to allow a petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review.
See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the determination on appeal).
The Director determined that the Petitioner's proposed endeavor was of substantial merit, but concluded the Petitioner did not establish that his proposed endeavor had national importance.
Although the Director listed the documents submitted by the Petitioner and generally concluded that they were insufficient, the decision does not sufficiently analyze this evidence and explain why it was deficient. The Director should analyze the evidence provided by the Petitioner to determine whether the record sufficiently demonstrates that the endeavor has national importance. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. See Dhanasar, 26 I&N Dec. at 889. The Director should focus on the Petitioner's proposed endeavor rather than his specific occupation. An endeavor having significant potential on the broader implications for a field or region generally may rise to the level of having national importance for the purpose of establishing eligibility for a national interest waiver. See generally 6 USCIS Policy Manual, supra, at F.5(D)(l). If the Director concludes that the Petitioner's documentation does not meet the national importance requirements of Dhanasar's first prong, the decision should discuss the insufficiencies in the evidence and adequately explain the reasons for ineligibility.
For Dhanasar 's second prong, the Director concluded the Petitioner was not well positioned to advance the proposed endeavor. 6 However, on appeal, the Petitioner points out that the Director acknowledged that he was well-positioned in the request for evidence (RFE), but the "denial decision contradicts this by stating [the Petitioner] is not well positioned, without providing a clear rationale for this reversal in stance."Inconsistencies in the record The Petitioner further states that "[t t ]his inconsistency is not only confusing but also indicative of an arbitrary assessment process." We agree. The Director should analyze the evidence to determine if the Petitioner is well positioned to advance the proposed endeavor and consider all the evidence offered for prong two, including the Petitioner's academic record, certifications and trainings, expert opinion letter, and letters of support and recommendation. The Director must analyze the specific content of the record to determine if this documentation renders the Petitioner well positioned to advance the proposed endeavor. If the Director concludes that the Petitioner's documentation does not meet Dhanasar 's second prong, the decision should discuss the insufficiencies in the evidence and adequately explain the reasons for ineligibility.
As to the third prong, the Director did not discuss the evidence weighed or address the Petitioner's specific claims. 7 Without a proper evaluation of the factors identified in Dhanasar, the Director's determination for this prong was also insufficient.
Conclusion
We will remand the matter since the Director's decision did not adequately address the evidence submitted with the petition or in response to the RFE. The Director should issue a new decision containing sufficient analysis of the submitted evidence that affords the Petitioner the opportunity to present a meaningful appeal. The Director may request any additional evidence considered pertinent to the new decision.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.