The Petitioner, an operations researcher and professor, seeks employment-based second preference (EB-2) 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 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2).
SCOPS denied the petition, concluding that the record did not establish that a waiver of the job offer requirement is 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). While we conduct de novo review on appeal, Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that a remand is warranted in this case because SCOPS' decision is insufficient for review. We will withdraw the decision and remand the matter for entry of a new decision consistent with the following analysis.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act.
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 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.
Matter ofDhanasar, 26 I&N Dec. at 889.
Analysis
SCOPS found that the Petitioner qualifies for the EB-2 classification as an advanced degree professional. SCOPS also found that the proposed endeavor has substantial merit and that the Petitioner is well-positioned to advance it. SCOPS denied the petition, however, finding that the Petitioner did not establish the proposed endeavor's national importance or that, on balance, waiving the job offer requirement would benefit the United States.Did not show the waiver outweighs labor certification On appeal, the Petitioner contends that he has established eligibility for a national interest waiver and that SCOPS' decision was unclear, contained factual errors, and did not properly analyze the evidence in the record. Upon de novo review, we conclude, for the reasons discussed below, that the decision does not sufficiently analyze the record based upon the framework set forth in Matter ofDhanasar, and that a remand of the matter is therefore appropriate.
Regarding the Petitioner's eligibility for the EB-2 classification, we note that SCOPS misstated the Petitioner's education in concluding that the Petitioner established EB-2 eligibility. Specifically, SCOPS stated that the Petitioner is an advanced degree professional based upon obtaining "a foreign bachelor's degree in physiotherapy, and also having at least 5 years of progressive experience in the field," and that this finding was noted in the request for evidence (RFE). But the record shows that the Petitioner possesses the foreign equivalent of a Ph.D. in industrial and systems engineering. Moreover, SCOPS' RFE did not make any statement regarding the Petitioner's eligibility for the EB-2 classification. On remand, SCOPS should review the evidence in the record in determining the Petitioner's eligibility for the EB-2 classification.
Turning to the Petitioner's request for a national interest waiver, the Petitioner states that his proposed endeavor is to "develop critical mathematical models, algorithms, and solution methods for optimizing and planning problems in public transit, sustainable transportation, and maritime transportation in order to inform transport operations and infrastructure decisions." He states that he intends to pursue this endeavor as an associate professor in the United States.
The first prong of the Dhanasar framework, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. Matter ofDhanasar, 26 I&N Dec. at 889. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Id. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Id.
SCOPS concluded that the Petitioner established the substantial merit of the proposed endeavor but not its national importance. But in discussing why the evidence does not establish national importance, we agree with the Petitioner that SCOPS made multiple statements that do not reflect the evidence in the record. For example, SCOPS referred to the Petitioner's "proposed business and his potential clients" in the "construction industry." SCOPS also found that the "sales forecast indicates that the [P]etitioner's company has growth potential," but that he has not shown "that the proposed U.S. p. 3 company's future staffing levels and business activity" stand to provide substantial economic benefits. Additionally, SCOPS concluded that there are not sufficient details about "the endeavor, the clients, the nature of their business, the level of revenue expansion," or other relevant evidence. In another section ofthe decision, SCOPS stated that the Petitioner claims that his proposed endeavor will address "unemployment or underemployment through employability-human talent development as a psychiatrist."
As the Petitioner contends on appeal, these statements, in which SCOPS referred to an incorrect industry for the proposed endeavor and appeared to discuss an entrepreneurial or business-based endeavor, are not reflective of the record before us, in which the Petitioner describes a proposed endeavor involving conducting research in an associate professor position. Additionally, SCOPS referred to specific evidence, such as a "sales forecast," that is not in the record. Although parts of the analysis do relate to the Petitioner's proposed endeavor, significant portions throughout the decision do not.
On remand, SCOPS should consider whether the evidence in the record demonstrates the potential prospective impact of the proposed endeavor as contemplated by Matter ofDhanasar. For example, SCOPS may consider whether the evidence sufficiently establishes that the Petitioner's research has the potential to positively impact the problems oftraffic congestion, environmental pollution, and poor infrastructure such that the record establishes the national importance of the endeavor. The second prong shifts the focus from the proposed endeavor to the individual. To determine whether they are well positioned to advance the proposed endeavor, we consider factors including, but not limited to: their education, skills, knowledge and record ofsuccess 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. Matter ofDhanasar, 26 I&N Dec. at 890.
SCOPS concluded that the record does establish that the Petitioner is well-positioned to advance the proposed endeavor. However, SCOPS' analysis again does not appear to be based on the evidence in the record. For example, SCOPS concluded that the Petitioner established that he meets the enumerated factor of a "model or plan" for future activities because he "submitted a detailed business plan." The record, however, does not contain a business plan and the Petitioner does not state that his proposed endeavor involves owning and operating a business.
On remand, SCOPS should consider whether the evidence in the record establishes that the Petitioner is well-positioned to advance the proposed endeavor, based on the factors enumerated in Matter of Dhanasar as well as any other relevant factors. For example, because the Petitioner contends that the endeavor will be pursued through an associate professor position in the United States, SCOPS may consider whether there is sufficient evidence in the record regarding the specifics of the Petitioner's potential associate professor position, such that the record shows a model or plan for future activities, progress toward achieving the endeavor, and interest from relevant parties. 2 2 While the national interest waiver waives the job offer requirement, if a petitioner does not intend to be self-employed. USCIS considers a job offer or communications with prospective employers, while not required, relevant to demonstrate the circumstances or capacity in which the petitioner intends to carry out the endeavor and the feasibility of that plan. See generally 6 USC1S Policy Manual F.5(D)(3), https://www.uscis.gov/policy-manual.
All evidence submitted in connection with a petition must be incorporated into the record and considered as part of the benefit request. 8 C.F.R. § 103.2(b)(l). Additionally, an officer must folly explain the reasons for denying a visa petition to allow the 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)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must folly explain the reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the determination on appeal). Therefore, we will withdraw the decision based on the deficiencies stated above. On remand, SCOPS should review the entire record in considering whether the Petitioner has established eligibility under each of the three prongs of the Dhanasar framework.
Conclusion
Accordingly, the matter will be remanded to SCOPS to determine if the Petitioner has established eligibility for a national interest waiver and to enter a new decision. SCOPS may request any additional evidence considered pertinent to the new determination. As such, we express no opinion regarding the ultimate resolution of this case on remand.
ORDER: The decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.