immigrant classification as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification.
1 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 did not qualify for classification as an individual of exceptional ability. 2 The matter is now before us on appeal.
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 dismiss the appeal.
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). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a petitioner does so, we will then conduct a final merits detennination 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.
Ifa 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) 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 U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion,4 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.
Id.
Analysis
In Parts 5 and 6 of the Form 1-140, under "Additional Information About the Petitioner" and "Basic Information About the Proposed Employment," the Petitioner listed both her "Occupation" and "Job Title" as "Chief Executive Officer."5 The Petitioner asserted that she meets at least three of the regulatory criteria for classification as an individual of exceptional ability. In denying the petition, the Director determined that the Petitioner fulfilled only the official academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). In the appeal brief, the Petitioner maintains that she also meets the ten years of full-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the license or certification criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the membership criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), and the recognition for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we conclude that the record does not support a finding that the Petitioner satisfies the requirements of at least three criteria.
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offitll-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B).
Based on the specific information the Petitioner provided in her Form 1-140, Form ETA-750B, and September 2022 business plan for her company, the occupation sought in this matter is "chief executive officer."6 As evidence for this criterion, the Petitioner provided a letter from her spouse, Managing Partner of T-R-C- Ltda., stating that the Petitioner "was employed since February 26, 2007, until August O 1, 2022, at the company T-R-C- Ltda. . . . We also inform that the above mentioned employee 4 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver is discretionary in nature).
worked in a full time position as Sales Representative." This information does not indicate that the Petitioner has at least ten years of full-time experience in the occupation of chief executive officer. Without evidence showing that the Petitioner has at least ten years of full-time experience in the occupation sought, she has not established that she satisfies this criterion.
A license to practice the profession or cert[fication for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C).
The Petitioner presented the business registration certificate for T-R-C- Ltda. issued by the Regional Council of Commercial Representatives of the State of Parana. This certificate states that the company was "in Regular Situation with this professional supervisory board, until the date of validity of this certificate." Registering a company under the supervision ofa regional council is not a license to practice a profession or a certification for a particular profession or occupation. The Petitioner has not demonstrated that this business registration certificate constitutes a certification for her occupation, rather than simply permission to operate a business. Accordingly, the Petitioner has not established that she meets this criterion.
Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D).
To qualify under this criterion, a petitioner must show that they have "commanded a salary or remuneration for services that is indicative of their claimed exceptional ability relative to others working in the field." 7
As documentation for this criterion, the Petitioner presented company invoices and her individual income tax statements for 2019, 2020, and 2021. The Petitioner also provided a declaration from a certified public accountant (C-C-F-) stating that she "has received a monthly salary equivalent to R$ 30.000,00 (trinta mil reais), in the period corresponding to the years 01/01/2019-31/12/2021." Page 8 of her individual income tax statements list 'Total Taxable Income" amounting to 24,000.00 in "Calendar Year 2019," 30,000.00 in "Calendar Year 2020," and 30,517.00 in "Calendar Year 2020."
The Petitioner's "monthly salary equivalent" claimed by C-C-F- does not correspond to the Total Taxable Income in the Petitioner's yearly individual income tax statements. The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
The Petitioner contends on appeal that "Glassdoor data indicates that the average salary for a sales representative is R$11,605, while entrepreneurs earn around R$18,077 on average." The Petitioner, however, did not submit documentary evidence of the Glassdoor data she references. 8 Nor has the Petitioner demonstrated that the Glassdoor data she references is relevant to the time periods covered by her earnings evidence. Furthermore, the specific information the Petitioner provided in her Form I-140, Form ETA-750B, and September 2022 business plan for her company, indicates that the occupation sought in this matter is "Chief Executive Officer." Here, the Petitioner has not presented documentation showing that her earnings are indicative of exceptional ability relative to other chief executive officers in Brazil. Instead, she points to average salaries for sales representatives and entrepreneurs in Brazil. 7 See generally 6 USC1S Policy Manual F.5(B)(2), supra.
Without evidence demonstrating that she has commanded a salary, or other remuneration for services, which demonstrates her exceptional ability, the Petitioner has not established that she meets this regulatory criterion.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Petitioner asserts on a eal that she meets this criterion based on her membership in the _________________ She presented a November 2022 letter from indicating that she has been a "member since 2010." This letter further states:
[The Petitioner] actively participates in the meetings and events of and also of the Council of the Woman Entrepreneur ( CME), contributing much with her experience and professionalism, in the preparation and development of women entrepreneurs, committed to succeed in their businesses. The also conducts trainings to enable and update entrepreneurs, service providers and workers in trade and industry.
The Petitioner also presented a copy ofl Ibylaws. Under "Chapter IV Membership," the bylaws state: I Imembership shall consist of legal entities engaged in economic activities .... Legal entities are represented by qualified individuals, such as owners, partners, directors and legally constituted proxies with a management mandate." The evidence, however, does not demonstrate that I lhas a membership body comprised of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization otherwise constitutes a professional association. 9 Accordingly, the Petitioner has not established that she meets this criterion.
Evidence ofrecognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Conclusion
For the reasons set forth above, we agree with the Director that the Petitioner has not shown she meets at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). 10 Since this issue is dispositive of the Petitioner's appeal, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of expertise required for exceptional ability classification. 11 In addition, we need not reach a decision on whether, as a matter of discretion, she is eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reserve these issues. 12 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.