The Petitioner, a university, seeks to employ the Beneficiary as an assistant professor in its theater, film, and digital production department. The school requests his classification under the employmentbased, second-preference (EB-2) immigrant visa category as a member of the professions holding an "advanced degree." See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). Organizations may sponsor aliens for U.S. permanent residence in this category to work in jobs requiring at least master's degrees or their equivalent. See 8 C.F.R. § 204.5(k)(2) ( defining the term "advanced degree").
Service Center Operations (SCOPS) denied the petition. SCOPS found the Beneficiary eligible for EB-2 classification as an advanced degree professional. But SCOPS concluded that the Petitioner did not demonstrate the Beneficiary's qualifications for designation as an alien of "exceptional ability" under the U.S. Department of Labor' s (DOL's) Schedule A Group II. See 20 C.F.R. § 656.5(b)(l). On appeal, the Petitioner submits additional evidence and contends that SCOPS imposed novel requirements and disregarded probative evidence.
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we conclude that the school has not established the Beneficiary as an alien of exceptional ability under Schedule A Group II. We will therefore dismiss the appeal.
Law
Immigration as an advanced degree professional usually follows a three-step process. First, a prospective employer must obtain DOL certification that: there are insufficient U.S. workers able, willing, qualified, and available for the offered job; and an alien's employment in the job would not harm the wages or working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l l 82(a)(5)(A)(i). If DOL approves a job for an alien, a prospective employer must next submit the certified labor application with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Finally, if USCIS grants a petition, an alien beneficiary may apply abroad for an p. 2 immigrant visa or, if eligible, for adjustment of status in the United States. See section 245(a) of the Act, 8 U.S.C. § 1255(a).
DOL, however, has already determined that the United States lacks sufficient "aliens of exceptional ability in the sciences or arts, including college and university teachers of exceptional ability," and that employment of aliens in these Schedule A occupations would not harm wages or working conditions of U.S. workers in similar jobs. 20 C.F.R. § 656.5(b)(l). Thus, organizations seeking to employ aliens in Schedule A occupations need not advertise the jobs to U.S. workers, and DOL authorizes users to adjudicate Schedule A labor certification applications in immigrant visa petition proceedings. 20 C.F.R. § 656.15(a). Therefore, in this matter, users rules not only on the immigrant visa petition, but also on its accompanying Schedule A labor certification application. See 20 C.F.R. § 656.15( e) ( describing users labor certification determinations in Schedule A proceedings as "conclusive and final"). As with any filing for an employment-based immigrant that requires an offer of employment, this petition must be accompanied by evidence that the prospective U.S. employer has the ability to pay the proffered wage. 8 C.F.R. § 204.5(g)(2).
II. ANAL YSrS
A. The Beneficiary and His Field
The record shows that the Beneficiary earned a bachelor's of fine arts degree in filmmaking, theater, and audiovisual studies in Lebanon and a master of fine arts degree in photographic and electronic media in the United States. Since September 2016, the petitioning U.S. university has employed him in artistic and teaching roles, including in the offered assistant professor's job since July 2023. The Beneficiary specializes in non-fiction film production and contemporary art. His work has been internationally exhibited, including in the United States, Canada, Austria, Germany, Saudi Arabia, and Lebanon. International publications have written about him, and he has received award nominations at international film festivals and invitations to review others' work in his field.
B. EB-2 Classification
The record supports SCOPS' finding that the Beneficiary qualifies for EB-2 classification as an advanced degree professional. See section 203(b)(2)(A) of the Act; 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree"). The record shows that the offered assistant professor's job requires at least a master's degree and that the Beneficiary has one in a qualifying field.
C. Aliens of Exceptional Ability Under Schedule A Group II
A petition for an advanced degree professional must include an individual labor certification from DOL or an application for Schedule A designation. A Schedule A Group II designation application for an alien of exceptional ability in the sciences or arts must show "the widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field." 20 CFR § 656.15(d)(l). An employer must also document that "the alien's work in that field during the past year did, and the[ir] intended work in the United States will, require exceptional ability." Id. Further, p. 3 the requested classification requires submission of at least two of the following seven types of evidence, showing that the alien:
- Received internationally recognized prizes or awards for excellence in their field;
- Had membership in international associations in the field requiring outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
- Was the subject of published material in professional publications about them and their work in their field;
- Participated as a judge of others' work in the same or an allied field;
- Made original scientific or scholarly research contributions ofmajor significance in their field;
- Authored published scientific or scholarly articles in the field in international professional journals or professional journals with international circulation; or
- Had their work in the field displayed at artistic exhibitions in multiple countries, 20 C.F.R. § 656.15(d)(l)(i)-(vii).
Congress intended the exceptional ability standard for Schedule A Group II to be less restrictive than the "extraordinary ability" standard under the employment-based, first preference (EB-1) immigrant visa category at section 203(b)(1 )(A) of the Act, but more restrictive than the "exceptional ability" standard under the EB-2 category. See Final Rule for Employment-Based Immigrants, 56 Fed. Reg. 60897, 60898 (Nov. 29, 1991).
1. The Evidentiary Criteria
The record supports SCOPS' findings that the Petitioner met the following two evidentiary criteria showing:
- The Beneficiary's participation as a judge of others' work in the field; and
- Display of his work in the field at artistic exhibitions in multiple countries.
Beneficiary created. But the articles do not state that the images are from films. Rather, the images appear to be photographs.
The Petitioner has not submitted published materials about the Beneficiary and his work in the applicable filmmaking field. We will therefore withdraw SCOPS' contrary finding. Nevertheless, the school has met the requisite number of evidentiary requirements.
2. Widespread Acclaim and International Recognition
SCOPS found insufficient evidence that the Beneficiary received widespread acclaim and international recognition for his work in his field. SCOPS recognized evidence that he had judged others' work in his field. But SCOPS found: "[T]he petitioner has not established that the level and frequency of the beneficiary's participation as a reviewer of manuscripts is indicative of or consistent with being recognized beyond the routine process of reviewing others['] work." SCOPS also acknowledged letters from others in the field stating that journals had published the Beneficiary's work. But SCOPS found that "[t]he authors have not specifically detailed how the beneficiary's publications or citations set him apart from others in his field or reflect [how] he has garnered widespread recognition."No interest from users, customers or investors On appeal, the Petitioner contends that:
USCIS effectively treated the absence of a "citation record" as determinative or neardeterminative in evaluating major significance and recognition - an approach that is legally flawed and misaligned with the arts/film context. Schedule A, Group II is designed to accommodate multiple kinds of proof - awards, associations, published material about the alien, judging, major-significance contributions, authorship, and exhibitions.
USCIS' analysis, however, undervalued the very categories the regulation identifies as probative in their field, especially exhibitions, international press, and judging, then concluded there was 'little evidence' of international recognition. This approach substitutes an unduly narrow notion of recognition for the regulation's broader evidentiary design.
We disagree that, in assessing acclaim and international recognition ofthe Beneficiary's work, SCOPS treated the absence of citations to his published articles as "determinative or near-determinative." As indicated above, SCOPS not only discussed a lack of citations but also the "level and frequency" of his review of others' work. Thus, we find that the Petitioner distorts the basis of SCOPS' finding. Nevertheless, we agree with the Petitioner that SCOPS overlooked evidence of the Beneficiary's acclaim and international recognition. The school submitted evidence that film festivals around the world have exhibited his films. The Petitioner further argues that "[p ]restigious international exhibitions and festival selections show that his expertise and original work is widely recognized and revered by leading experts and institutions in the field, domestically and abroad." But the record lacks sufficient corroborating evidence showing the alleged "prestige" ofthe exhibitions and festivals or the "leading" nature of the experts and institutions that would result in widespread acclaim and international recognition.
The Petitioner contends that the published materials about the Beneficiary and his work also demonstrate widespread acclaim and international recognition. The school describes the published material as: direct, independent corroboration that the Beneficiary's work is recognized beyond local or insular circles and across international venues and professional audiences. The reviewing Officer's failure to consider this evidence and their disregard for its merit in support of the petition is egregious error and abuse of discretion.
But the applicable regulation states that widespread acclaim and international recognition must be accorded "by recognized experts in the alien's field." 20 C.F.R. § 656.15(d)(l). The record does not demonstrate that the publications or authors that wrote about the Beneficiary qualify as recognized experts in the filmmaking field. Indeed, as previously indicated, the published materials do not specifically discuss his filmmaking activities. The published materials therefore do not demonstrate qualifying widespread acclaim or international recognition.
The Petitioner also argues that letters on the Beneficiary's behalf demonstrate his widespread acclaim and international recognition. The school states: "Internationally recognized scholars and industry experts across multiple institutions ... attest to his impact, leadership, and originality." As SCOPS found, however, most ofthe letters lack sufficient details and corroborating evidence. For example, a letter from a U.S. assistant professor of film and media studies states that the Beneficiary's "innovative research work poses significant contributions for advancing such critical fields for the United States, such as the education, media, culture, and contemporary arts fields, as well as the overall academic industry as a whole." But the letter does not describe the Beneficiary's research or explain how it purportedly advances the identified fields. Also, the record does not appear to include copies or examples of his research that might corroborate the letter's claims. Similarly, a letter from a curator and international director of a contemporary art program supporting El Salvadoran artists praises the Beneficiary's design and launch of a nonfiction film production course at the petitioning university. In sum, the evidence is insufficient to establish the required "widespread" nature of the acclaim and recognition as specifically required by the regulation.
3. Exceptional Ability
The Petitioner's application for a prevailing wage determination (PWD) states that the offered assistant professor's job requires "[ e ]xceptional ability in the field of Filmmaking, Film Industry, Art and Film Education, Digital Media and/or a related field." 1 Nevertheless, we agree with SCOPS that the school has not demonstrated that the job would require exceptional ability. As SCOPS found:
Although the petitioner claims it requires an individual of exceptional ability to fulfill the duties and responsibilities of this position, the duties for the position described by the petitioner does not indicate that the position requires an individual with exceptional abilities to fulfill the roles and/or duties.
The PWD application states the following job duties: "Create and teach undergraduate courses; mentor students and supervise production work and theses, with a dedication to professional service to the department of Theatre, Film and Digital Production and the university." The duties do not indicate that they require a person with exceptional ability to perform them.
On appeal, the Petitioner argues that SCOPS erred in focusing on the offered job's duties. The school states:
[T]he correct inquiry is whether the offered employment and the field context, supported by objective evidence and credible institutional attestations, establish that the intended work requires exceptional ability. This appeal submits additional employer-side evidence (including letters from senior [school] leadership) that directly addresses USCIS' stated concerns and explains, with specificity, why exceptional ability is required for the position and why the Beneficiary's acclaim and international recognition meet the Group II standard.
The record, however, shows that SCOPS' request for evidence (RFE) notified the Petitioner of the type of evidence required and afforded it a reasonable opportunity to respond. The school claims that the new evidence "was not previously available" but does not demonstrate or explain why. We therefore decline to consider the evidence on appeal.Evidence submitted too late See Matter ofFurtado, 28 T&N Dec. 794, 801-02 (BIA 2024) (declining to consider new evidence on appeal when a petitioner received notice of the required evidence and a reasonable opportunity to provide it); see also 8 C.F.R. § 103.2(b)(ll) (requiring all evidence in response to a RFE to be submitted together at one time).
The Petitioner has not demonstrated that the offered job requires exceptional ability. We will therefore affirm SCOPS' finding.
Conclusion
The Beneficiary qualifies for EB-2 classification. But the Petitioner did not demonstrate eligibility for the requested designation under Schedule A Group II. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.S(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 ofthe Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.