The Petitioner, a woodcarving artist, 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 Texas Service Center denied the petition, concluding that the Petitioner had not established that he was individual of exceptional ability.
On appeal, the Petitioner submits additional evidence and a brief asserting that he meets the requirements of the requested classification.
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal.
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. -(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 p. 2 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) National interest waiver. ... [T]he Attorney General may, when the Attorney 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) of the 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 equivalent degree above that of baccalaureate. A United States baccalaureate degree 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 ofthe occupations listed in section 10l(a)(32) ofthe 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, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating 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 In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionmy in nature).
Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, grant a national interest waiver if the petitioner demonstrates: (1) that Dhanasar states that after a petitioner has p. 3 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 certification. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
Analysis
In denying the petition, the Director determined that the Petitioner had not met any of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). On appeal, the Petitioner asserts that he meets the five criteria addressed An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution o f learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). below.
The Petitioner's diploma, transcript, and evaluation establish that the Petitioner meets the requirements ofthis criterion. We, therefore, withdraw the Director's finding on this issue.
We note, however, that section 203(b)(2)(C) of the Act provides that the possession of a degree, diploma, certificate or similar award from a college, university, school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability.
Evidence in theform o fletter(s) fi·om current orformer employer(s) showing that the alien has at least ten years offull-time experience in the occupationfor which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) The Petitioner submitted a copy of his "Employment Record Book" (ERB) and accompanying translation to satisfy this requirement. The plain language ofthe regulation, however, requires letter(s) which 1) are from current or former employers and 2) establish ten years offull-time experience in the occupation (emphasis added). Not only has the Petitioner not demonstrated that the ERB is the equivalent of a letter from a current or former employer, but it also does not establish at least ten years 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).
The Petitioner submitted evidence relating to his 2019 U.S. tax return indicating that he earned $300 in "wages, salaries, tips, etc." To satisfy this criterion, however, the evidence must show that he has We note, for example, that from March 31, 2003 until March 31, 2006, the Petitioner's employment is listed as "carpenter machine operator." Further, the ERB does not indicate whether past employment was on a full or part-time basis, nor does it provide any job description or duties. offull-time experience as a woodcarver.
As the Petitioner does not address the remaining criterion, we consider it 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. Att 'v Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States v. Cunningham. 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark. No. 09-CV-27312011, 2011 WL 4711885 at *1 *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). p. 4 commanded a salary or remuneration for services that is indicative ofhis claimed exceptional ability (emphasis added). Without more, the Petitioner has not established that he meets this criterion.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Petitioner submitted a photocopy of a membership card from the National Wood Carvers Association. First, the card does not include the Petitioner's name and, thus, does not establish that the Petitioner is, in fact, a member. Regardless, he did not provide any supporting evidence, such as the membership requirements, which establishes that it is a professional organization. As noted above, profession is defined as "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." 8 C.F.R. § 204.5(k)(2).
Evidence ofrecognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
The record includes a variety of participation and gratitude certificates, recommendation letters, articles, and photographs of the Participant's work. The plain language of the criterion requires recognitionforbothachievementsandsignificantcontributionstotheindustryorfield. However,without additional evidence, such as objective information regarding the significance of the publications, requirements to receive these certificates, and the Petitioner's specific and significant contributions to the field ofwoodworking, the Petitioner has not established that he meets this criterion.
On appeal, the Petitioner submits a copy of a citation from the _ _ _ _ _ _ dated August 24, 2021. The Petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l2); Matter o fKatigbak, 14 T&N Dec. 45, 49 (Comm'r 1971 ).Not eligible at the time of filing Regardless, he has not explained or established how a citation "recognizing, honoring, and thanking" the Petitioner demonstrates that he meets this criterion.
For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification.Exceptional ability not established As the Petitioner has not met the threshold requirement for this classification, further analysis of his eligibility for a national interest waiver would serve no meaningful purpose.
Conclusion
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.