The Petitioner is a logistician who seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest waiver (NIW) of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1l 53(b )(2).
The Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers (petition), concluding that the record did not establish the Petitioner qualifies for the underlying visa classification or merits a discretionary waiver of the job offer requirement in the national interest. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
To establish eligibility for an NIW, 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. Section 203(b )(2)(B)(i) of the Act.
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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 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. USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of exceptional ability. See generally 6 USCIS Policy Manual B.2, https://www.uscis.gov/policy-manual.
Once a petitioner demonstrates eligibility for the 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 p. 2 term "national interest," Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating NIW petitions. Dhanasar states that USCIS may, as matter of discretion, grant an NIW 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.
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining four U.S. Circuit Courts of Appeals in concluding that USCIS' decision to grant or deny an NIW to be discretionary in nature).
The Director determined that the Petitioner is not eligible for the EB-2 classification as an individual of exceptional ability and partly denied the petition on this basis. On appeal, the Petitioner does not contest this adverse determination and only addresses the Director's decision relating to the NIW prongs. The Petitioner has abandoned or waived the EB-2 issue on appeal, and he cannot properly resurrect those claims in any motion relating to this petition. Matter ofPougatchev, 28 I&N Dec. 719, 729 (BIA 2023) (concluding issues that are not meaningfully appealed are waived).
Because his eligibility for the underlying EB-2 classification is one dispositive issue on appeal and because he forfeited it, we do not need to evaluate his eligibility for the NIW requirements as doing so would serve no purpose; not even if he were to satisfy all three of the Dhanasar prongs. Because the identified basis for the petition's denial is dis positive of this appeal, we will not address and we reserve the Petitioner's remaining appellate arguments. Patel v. Garland, 596 U.S. 328, 332 (2022) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (finding agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision)); see also Matter ofChen, 28 I&N Dec. 676, 677 n.1, 678 (BIA 2023) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
ORDER: The appeal is dismissed.