The Petitioner, a teacher, seeks second preference 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. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not qualify for classification as an individual of exceptional ability, and that she had not established 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.
On appeal, the Petitioner asserts that she qualifies for both the underlying classification and a national interest waiver. On June 7, 2021, we issued a notice of intent to dismiss (NOID). In response, the Petitioner submitted anotarizedstatement. Forthereasonsbelow,wewilldismisstheappealandenteraseparatefinding o f willful misrepresentation o f a material fact against the Petitioner.
Law
To establish eligibility for a national interest waiver, 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. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.
Section 203(b) of the Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. - p. 2 (A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
Section 101 (a)(32) ofthe Act provides that "[t]he term 'profession' shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries."
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions:
Advanced degree means any United States academic or professional degree or a foreign equivalentdegreeabovethatofbaccalaureate. AUnitedStatesbaccalaureatedegree or a foreign equivalent degree followed by at least five years ofprogressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry in the occupation.
In addition, to demonstrate eligibility as an individual of exceptional ability, a petitioner must submit documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii).
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) In announcing this new framework, we vacated our prior precedent decision, Matter o{Ncw York State Department of Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). p. 3 may, as matter of discretion , grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor
Analysis
A. Member of the Professions Holding an Advanced Degree
The Director concluded that the Petitioner did not establish that she is an advanced degree professional. On appeal, the Petitioner does not address this issue. We, therefore, consider this claim abandoned. See Matter ofR-A-M-. 25 I&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived). See also Sepulveda v. U.S. AttJ! Gen., 401 F.3d 1226. 1228 n. (11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. l998);Hristovv. Roark, No. 09-CV-27312011, 2011WL4711885 at*l. *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to raise them on appeal to the AAO).
B. Exceptional Ability
On appeal, the Petitioner asserts that she meets five ofthe six criteria. As the Petitioner does not address the Director's conclusion that she does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), we will considerthisissueabandoned. Id.
An official academic record showing that the alien has a degree, diploma, certtficate, or similar awardfrom a college, university, school, or other institution o f learning relatingtotheareaofexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(A).
The Petitioner's foreign bachelor's degree meets the plain language ofthis criterion.
Evidence in theform ofletter(s)from currentorformer employer(s) showing that the alien has at least ten years ofjitll-timeexperience in the occupationfor which he or she is being sought. 8 C.F.R § 204.5(k)(3)(ii)(B) As explained by the Director, the two submitted letters regarding the Petitioner's employment from Sec also Poursinav. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest wa iverto be discretionary in nature).
This letterwa s written by the Petitioner,___---,
which document "ten years of full-time experience in the occupation," we cannot conclude that she Evidence that the alien has commanded a salary, or other remuneration for services, whichdemonstratesexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(D).
To satisfy this criterion, the evidence must show that an individual has commanded a salary or remuneration for services that is indicative ofher claimed exceptional ability relative to others working meets the requirements ofthis regulatory criterion. in the field.
The record does not contain any documentation which makes such a showing.
Evidenceofmembershipinprofessionalassociations. 8C.F.R.§204.5(k)(3)(ii)(E).
The Petitioner contends that her membership in the Association of American Educators satisfies this criterion. As explained by the Director, the submitted letter and membership card indicate that she didnotbecomeamemberuntilJanuary 10,2020.,almost8monthsafterthedateoffiling. Eligibility for a requested immigration benefit must be established at the time of filing. 8 C.F.R. §§ 103 .2(b )(1), (12);MatterofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter ofIzwnmi, 22 I&N Dec. 169, 175 (Comm 'r 1998). That decision, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981 ), further provides that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, the Petitioner has not established that she meets this criterion.
Evidence ofrecognitionfor achievements and significant contributions to the industly or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
For these reasons, the Petitioner has not established that she fulfills this criterion.
As evidence, the Petitioner provided complimentary recommendation letters instructors, but they are not sufficient to demonstrate that she meets the plain language requirements of or field.
The evidence does not show that the Petitioner's work as a teacher has had an impact this criterion.
For the reasons set forth above, the Petitioner has not shown that she meets at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii).
C. National Interest Waiver
As the Petitioner has not met the threshold requirement for this classification, further analysis of her eligibility for a national interest waiver would serve no meaningful purpose.
Willful Misrepresentation
As mentioned above, we sent the Petitioner a notice of intent to dismiss (NOID) the appeal based on findingsoutsideoftherecordofproceeding. ByissuingaNOID,wegavethePetitioneranopportunity to respond to the adverse findings, as required by 8 C.F.R. § 103 .2(b)(16)(i). We also advised the Petitioner that, if she did not overcome the adverse findings, then we would make a finding of willful misrepresentation of a material fact. We further advised that, while the Petitioner had the right to withdraw the petition, such a withdrawal would not prevent a finding of willful misrepresentation of a material fact. The Petitioner responded to the NOID with a notarized statement. For the reasons discussed below, we find that the Petitioner willfully misrepresented her authorship of four publications, which is material to the adjudication ofthe instant petition.
A. Evidence of Record
As documentation of her exceptional ability, the Petitioner submitted four "publications," which she claimed to have written. As discussed in our NOID, furtherresearch did not conoborate the Petitioner's claimed authorship. I Ione of the submitted publications, is virtually identical to an article entitled Lying and Misleading in Discourse that was written by Andreas StokkeandpublishedinthePhilosophicalReview,125(1),2016,83-134.11 Similarly! I ____________ .__ ____. isidenticaltoanarticlewrittenbySaadiaMahmood-u1-Hassanand twootherindividuals.Sci.Jnt. Lahore ,27 2 ,1539-1544,2015.
Finall ,thePetitioneralso resented
submitted did not contain any indicia of the published articles," such as "publisher data, publication dates, covers, ISBN numbers, or any other attributes that one would expect[] ... to prove the fact of publication."
Upon review, we do not find the Petitioner's response credible. For example, the Petitioner did not provide any evidence, such as a copy of the email to her attorney or even a statement from her attorney, to support her claim. Further, the Director's decision listed the submitted documents, noted that "the publications did not indicate where, when, or how they were published" and informed the Petitioner that a search of "Google Scholar on May 4, 2020 found no publications or citations" attributed to her.Citation record not persuasive In other words, the Petitioner had an opportunity to address the claimed "confusion" on appeal, but While an alien's timely and voluntaty retraction of a false statement may serve to excuse the misrepresentation, the In addition, the Petitioner's statement does not explain why, if these were simply failed to do so.
In this case, the discrepancies in the documents relating to the petition constitute substantial and probativeevidence. ThePetitionersubmittedfalsifiedevidencepurportingtoshowherauthorshipof these publications, which is material to her exceptional ability claim.
Beyond the adjudication of the visa petition, a misrepresentation may lead users to enter a finding that an individual foreign national sought to procure a visa or other documentation by willful misrepresentation of a material fact. This finding of fact may lead users to determine, in a future proceeding, that the foreign national is inadmissible to the United States based on the past misrepresentation.
Section 212(a)(6)(e) of the Act, 8 U.S.e. § l 182(a)(6)(e), provides:
Misrepresentation - (i) In general - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
To find a willful and material misrepresentation in visa petition proceedings, an immigration officer must detem1ine: 1) that the petitioner or beneficiary made a false representation to an authorized official ofthe United States government; 2) that the misrepresentation was willfully made; and 3) that the fact misrepresented was material. See MatterofM-, 6 I&N Dec. 149 (BIA 1954); Matter ofL-L-, 9 I&N Dec. 324 (BIA 196l);KaiHing Hui, 15 I&N Dec. at 288.
First, the Petitioner's submission of plagiarized material in supp01i of her immigrant visa petition constitutes a false representation to a government official.
Second, the Petitioner willfully made the misrepresentations. The Petitioner has not provided a credible explanation or rebuttal that she submitted the evidence accidentally, inadvertently, or in an honest belief that the assertions previously offered in support of the petition were true.
Furthermore, the Petitioner signed Form I-140, Immigrant Petition for Alien Worker, certifying under penaltyofperjurythatthevisapetitionandthesubmittedevidencearealltrueandcorrect. Seesection 287(b)of the Act, 8 U.S.e. § 1357(b);see also 8 e.F.R. § 103.2(a)(2). Accompanying the signed petition,thePetitionersubmittedtheevidenceinsupportofthepetition. Part8ofFormI-140requires a petitionertomakethefollowingaffirmation:"Icertify,underpenaltyofperjury,thatIhavereviewed this petition. I understand all ofthe information contained in, and submittedwith, my petition, and all ofthisinformationiscomplete,true,andcorrect." Onthebasisofthisaffirmation,madeunderpenalty of perjury, we find that the Petitioner willfully and knowingly made the misrepresentations.
Third, the misrepresented facts are material. To be considered material, a false statement must be shown to have been predictablycapable ofaffectingthe decision ofthe decision-makingbody. Kungys v. U.S., 485 U.S. 759 (1988). The regulation at 8 e.F.R. § 204.5(k)(3)(ii) calls for evidence "that the alienisanalienofexceptionalabilityinthesciences,arts,orbusiness." Asevidenceofherexceptional ability, the Petitioner submitted the plagiarized documents. The Petitioner's misrepresentations could have affected the outcome of the petition because they purported to address, and to satisfy, her p. 8 eligibility under section 203(b)(2) of the Act. In light of the falsified evidence we described above and in the NOID, we find that the Petitioner's misrepresentations were material to her eligibility.
Conclusion
By filing the instant petition and falsely claiming authorship ofthe publications, the Petitioner sought toprocureabenefitprovidedundertheActthroughwillfulmisrepresentationofamaterialfact. This finding may be considered in any future proceeding where admissibility is an issue.
ORDER: The appeal is dismissed.