The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree or, in the alternative, as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director ofthe Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Workers (Form 1-140), concluding that the Petitioner did not establish eligibility for EB-2 classification as either an advanced degree professional or as an individual of exceptional ability. The Director further determined that the Petitioner also did not merit a national interest waiver as a matter of discretion. The Petitioner subsequently filed a combined motion to reopen and reconsider the adverse decision, but the Director dismissed the motions. Regarding the motion to reconsider, the Director determined that the Petitioner had not demonstrated that the denial was based on an incorrect application of law or policy and that it was otherwise incorrect based on the evidence in the record at the time the decision was issued. 8 C.F.R. § 103.5(a)(3). The Director reviewed the supplemental documents in support of the motion to reopen but concluded that the Petitioner did not establish new facts and did not present new evidence sufficient to overcome the basis for the denial ofhis Form 1-140. 8 C.F.R. § 103.5(a)(2). On appeal, the Petitioner references the evidence submitted in support of his combined motion and asserts that the Director erred by failing to consider it in evaluating his work experience and other criteria relevant to his eligibility for the underlying EB-2 classification.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To qualify for EB-2 visa classification, a petitioner must first establish that they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(A) of the Act.
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five years of progressive experience in the specialty is the equivalent of a master's degree.
8 C.F.R. § 204.5(k)(2).
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). 1 Meeting at least three criteria, however, does not, in and of itself: establish eligibility for this classification. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree ofexpertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(A) of the Act.
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) ofthe Act. Matter ofDhanasar, 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, 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
The issue on appeal is whether the Petitioner has established that the Director erred by dismissing his combined motion to reopen and reconsider. 2 For the reasons discussed below, we conclude that the motions did not meet the applicable requirements and were properly dismissed.
The Petitioner claims EB-2 eligibility both as an advanced degree professional and as an individual of exceptional ability. The Director evaluated the evidence the Petitioner submitted in support of the Form I-140, including his response to a subsequent request for evidence (RFE), and explained in the denial why it was not sufficient to establish his claimed eligibility for EB-2 classification in either category. The Director reaffirmed this adverse determination in dismissing the Petitioner's combined motion to reopen and reconsider.
The Petitioner avers on appeal that the additional evidence he submitted on motion was adequate to show not only that he qualifies for the requested classification but also that he merits a national interest waiver and the Director's decision to dismiss his motions was therefore in error. We are not persuaded. A. Member of the Professions Holding an Advanced Degree To establish that a noncitizen holds a qualifying advanced degree, the petition must be accompanied by "[a]n official academic record showing that [they have] a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). On appeal, the Petitioner does not claim, and the record does not show that he has a United States advanced degree or a foreign equivalent degree.Degree not shown to be a U.S. advanced degree equivalent Id. Alternatively, a petitioner may present "[a]n official academic record showing that the noncitizen has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form ofletters from current or former employer(s) showing that [the noncitizen] has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). The Petitioner asserts that he qualifies as a member of the professions holding an advanced degree based on his foreign baccalaureate degree in Business Administration and five years of progressive work experience in the specialty. The supporting evidence at the time the Director denied the Form I-140 included copies of the Petitioner's diploma from the academic transcripts, and an expert opinion from a __________professor that the Petitioner p. 4 well as copies of the Form 1-140, the Director's 2022 RFE, and the 2023 denial decision. The new evidence on motion also included letters from a sales manager at a a cargo care company in Florida, attesting to the Petitioner's employment as a marketing and commercial manager, and a 2017 letter from the owner ofl !confirming the Petitioner's employment with the company in Argentina from 2016 through 201 7 as their commercial and marketing manager.
The Director determined that this evidence did not establish any new facts sufficient to reopen the proceedings and reconsider the determination concerning the Petitioner's ineligibility for EB-2 classification as an advanced degree professional. We agree.
Firstly, as the Director had previously determined that the Petitioner held a foreign equivalent of a United States baccalaureate degree, the new academic evaluation did not constitute a new fact or evidence with respect to this EB-2 classification requirement. Furthermore, the additional expert opinions and letters from former coworkers did not cure the lack ofthe requisite "letter(s) from current or former employer(s) showing that [the noncitizen] has at least five years of progressive postbaccalaureate experience in the specialty." The sole letter from the Petitioner's former employer shows only that he had been employed as a commercial and marketing manager for a year, far less than five years, regardless of whether this employment might qualify as progressive experience in the specialty.
In addition, the Petitioner did not identify any legal or policy errors in the Director's decision, nor did he claim that the decision was incorrect based on the evidence in the record at the time. Consequently, the Petitioner's motions to reopen and reconsider the determination concerning his ineligibility for EB-2 classification as an advanced degree professional degree did not meet the applicable requirements and were properly dismissed. See 8 C.F.R. § 103.5(a)(4) (providing that a motion that does not meet applicable requirements shall be dismissed).
B. Exceptional Ability
The Director concluded in the Form 1-140 denial, and reaffirmed on motion, that the Petitioner also did not meet the plain language requirements of at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)(F). Specifically, the Director determined that the Petitioner only satisfied the official academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Director explained in the Form 1-140 denial that the Petitioner did not show he met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) of having at least ten years of full-time experience in the occupation for which he was being sought, because the regulations at 8 C.F.R. § 204.5(g)(l) require the evidence of qualifying experience to be supported by letters from employers giving the name, address, title of the employer, and the Petitioner's resume, and recommendation letters from his colleagues working at different companies did not meet these requirements.
On appeal, the Petitioner references his resume and the five letters submitted on motion, which he characterizes as "confirmation of experience letters." He states that the Director erred by failing to consider them as evidence that he meets the criterion ofhaving at least ten years offull-time experience p. 5 in the occupation for which he is being sought. However, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) specifically requires the evidence often years of foll-time experience to be "in the form ofletter(s) from current or former employer(s)." (Emphasis added). As discussed above, the letters the Petitioner submitted on motion (with one exception) were from his colleagues or coworkers, and not from his current or former employers. As such, they did not establish any new facts or evidence that might overcome the lack of the requisite letters from current or former employers. The Petitioner therefore has not shown that the Director erred by declining to reopen the proceedings on that basis. See Matter ofCoelho, 20 I&N Dec. 464, 4 73 (BIA 1992) (requiring that new evidence have the potential to change the outcome).
Further, in concluding that the Petitioner did not show he commanded a salary, or other remuneration for services, which demonstrated exceptional ability to meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), 3 the Director acknowledged general information about average base pay of business development managers and the Petitioner's tax returns but explained that this documentation did not establish how his salary showed exceptional ability relative to others working in the same field. On appeal, the Petitioner resubmits copies of his 2018-2020 tax returns originally provided with the Form I-140 and printouts from websites with general information about jobs and compensation. However, the Director had previously considered these documents and explained that they were not probative of the Petitioner's eligibility absent evidence that he commanded a salary which demonstrates exceptional ability relative to others working in the field. Resubmission of essentially the same evidence on motion did not establish any new facts that might warrant a different conclusion concerning the Petitioner's eligibility under this criterion. Consequently, the Petitioner has not shown that that the Director erred by declining to reopen the proceedings and reexamine the record based on this evidence.
Lastly, the Petitioner submits previously provided and new testimonials from former coworkers describing his performance and contributions at his former place of employment. He reasserts that they are evidence of his recognition for achievements and significant contributions to the field of business development by peers, governmental entities, or professional or business organizations, required under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F). But, in denying the Form I-140 the Director explained that the letters of recommendation and certificates of recognition from the Petitioner's former coworkers did not establish his eligibility under this criterion, because they did not show how the impact of his work, achievements and recognitions went beyond the private employer he had worked for and rose to the level of significant contributions to the field ofbusiness development in general.Support letters generic or unsupported
On appeal, the Petitioner again references the recommendation letters as evidence that he was recognized for playing a crucial role in improving his former employer's brand positioning and shaping the company image and public perception. He reasserts that his contributions as a managerial professional transcend private employers and have elevated his former employer's business development initiatives. We acknowledge the Petitioner's statements, but he still has not demonstrated 3 The Petitioner has not claimed or submitted evidence that he meets the criterion in 8 C.F.R. § 204.5(k)(3)(ii)(C) (a license to practice the profession or certification for a particular profession or occupation). p. 6 how his work performance and achievements at his former place of employment rise to the level of having been recognized for significant contributions to the field of business development in general. Consequently, we agree with the Director that the additional evidence on motion did not establish new facts sufficient to support a different conclusion concerning this criterion. And, while we acknowledge that the Petitioner disagrees with the Director's assessment, he does not identify any specific legal or policy errors underlying the Director's ultimate conclusion that the evidence in the record at the time of the decision and as supplemented on motion was insufficient to show that he met at least three of six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).
In sum, the Petitioner's evidence and claims on motion did not overcome the Director's initial determination that he did not meet at least three of the six regulatory criteria for exceptional ability. Moreover, as discussed above, the new evidence and the Petitioner's statements on motion were also insufficient to overcome the deficiencies concerning his claimed eligibility for EB-2 classification as an advanced degree professional.
C. National Interest Waiver
As stated, to qualify for a national interest waiver, the Petitioner must first show that he qualifies for classification under section 203(b )(2)(A) of the Act as either an advanced degree professional or an individual of exceptional ability. The Petitioner has not shown that he is an advanced degree professional or that he has achieved the level ofexpertise required for exceptional ability classification. Consequently, he has not established eligibility for the underlying EB-2 immigrant classification. Because this ineligibility is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding his eligibility for a national interest waiver under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision).
Conclusion
The Petitioner has not demonstrated that the additional evidence he submitted in support of his combined motion to reopen and reconsider established new facts sufficient to warrant reopening of the proceedings. Nor did he show that the denial of his Form I-140 was in error as a matter oflaw or USCIS policy, or that it was otherwise incorrect based on the evidence in the record at the time. The Director therefore properly determined that the Petitioner's combined motion to reopen and reconsider did not satisfy the requirements under the regulations at 8 C.F.R. § 103.5(a)(2)-(3).
ORDER: The appeal is dismissed.