The Petitioner, an entrepreneur and business manager, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, 1 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. § l 153(b)(2).
USCIS denied the petition, concluding that the record did not establish that the Petitioner's eligibility for the EB-2 classification as alien of exceptional ability. Because the Petitioner did not establish his eligibility for the underlying EB-2 classification, USCIS declined to address his request for a national interest waiver. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
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 the underlying EB-2 visa classification, a petitioner must establish 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.
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). 2 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 1 The Petitioner does not claim, and the record does not support, eligibility for the EB-2 classification as a member of the professions holding an advanced degree.
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,3 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 Petitioner is a co-founder of~-----------------~ a Florida business which provides temporary staffing for hotels and other businesses related to tourism. In evaluating his eligibility as an alien of exceptional ability, USCIS Service Center Operations (SCOPS) concluded that the Petitioner met two of the evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) relating to his possession of a degree, diploma, certificate or similar award relating to his area of exceptional ability and at least 10 years of experience in the occupation for which he is being sought. But SCOPS determined that the Petitioner did not meet at least three of these criteria, as he did not meet the remaining two criteria he claimed relating to his command of a salary or other remuneration demonstrating exceptional ability and his recognition for achievements and significant contributions to the industry or field.Exceptional ability not established Because the Petitioner did not meet the initial evidentiary requirements for classification as an alien of exceptional ability, SCOPS did not conduct a final merits determination to assess whether he has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
On appeal, the Petitioner asserts that in addition to the two criteria which SCOPS concluded he meets, he also meets the other two criteria he claimed. He also asserts that he possess a level of expertise sufficient to meet the standards as an alien of exceptional ability, and merits a national interest waiver by satisfying all three prongs ofthe Dhanasar analytical framework. However, on review we disagree with and withdraw SCOPS' conclusion regarding the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) relating to the Petitioner's possession of at least 10 years of years experience in the occupation sought, while ultimately agreeing with SCOPS' determination regarding his eligibility as an alien of exceptional ability.
Before analyzing the Petitioner's claims to the evidentiary criteria, we initially note that there are inconsistencies in the record regarding the Petitioner's proposed endeavor that were alluded to in SCOPS' decision and directly impact his eligibility for the EB-2 classification.Inconsistencies in the record In the legal brief accompanying the initial petition, the Petitioner's representative introduced him as having "expertise and a degree in Business Administration, specializing in Human Resources (HR). His intended endeavor in the United States is to empower small and medium enterprises (SMEs), especially in rural areas, and provide the knowledge, skills, and strategies they need to optimize their operations through workforce optimization." Continuing, the brief describes the creation of a consulting firm which would "specialize in providing expert guidance to SMEs seeking to facilitate staffing, optimize their workforce, and provide guidance and access to talent base according to their needs." Later, when discussing the asserted national importance of the Petitioner's proposed endeavor, the brief states that his consultancy "will focus on providing Human Resources consultation services tailored for SMEs in rural areas where high levels of unemployment are present."
These conflicting statements ("human resources consultation services" versus providing guidance to businesses "seeking to facilitate staffing, optimize their workforce, and provide guidance and access to [a] talent base") in the initial filing are somewhat addressed in the brief attached to the Petitioner's response to SCOPS' request for evidence (RFE), where the proposed endeavor is described as a human resources consulting firm "that specializes in providing strategic HR solutions to businesses." However, in a statement from the Petitioner, he describes his proposed endeavor as "improving the availability, training, and management of support personnel in hotels and tourism-related facilities," which introduces further confusion about the true nature of the proposed endeavor.
This confusion also extends to the means through which the proposed endeavor will be executed. While the initial brief speaks about an unnamed, future consulting firm, both the brief submitted with the Petitioner's RFE response and his personal statement indicate that the proposed endeavor would be conducted through! I Also, the Petitioner's statement describes I Ias a company that "provides staffing and janitorial services to the hospitality industry" and the record includes two agreements providing for the company to deliver such services, but an undated business plan for I I also submitted with the RFE response describes it as "an established HR consulting firm," a description that is otherwise unsupported in the record.Plan or projections not corroborated It is therefore not apparent whether the Petitioner proposes to continue to lead the sales functions for I I in its provision of staffing services, develop the company into an HR consulting firm, or create a new business to provide HR consulting. It is the Petitioner's burden to resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
When seeking EB-2 classification as an alien of exceptional ability and a national interest waiver, a petitioner must describe in detail their occupation and proposed endeavor. See generally 6 USCIS Policy Manual F.5(D)(l), www.uscis.gov/policy-manual. The intended occupation is the one through which a petitioner plans to advance the proposed endeavor, and the proposed endeavor is more specific than the general occupation. Id. As discussed above, it appears that the Petitioner intends to serve as a business manager and entrepreneur in some capacity, but the record is inconsistent regarding his specific proposed endeavor. Since a petitioner's "area of exceptional ability" under 8 C.F.R. § 204.5(k)(3)(ii)(A) must be directly related to their proposed endeavor when seeking a national interest waiver, this inconsistency also directly affects the Petitioner's eligibility for the EB-2 classification, as further discussed below. Id.
A. Evidence of 10 Years of Full-Time Experience in the Occupation Sought
This criterion calls for evidence in the form of letters from current or former employers showing that a petitioner has 10 years of full-time experience in the occupation in which they are sought. The regulation at 8 C.F.R. § 204.5(g)(l) states that such letters must include "the name, address, and title of the writer, and a specific description of the duties performed by the alien." It goes on to state that if this evidence is unavailable, other documentation relating to the alien's experience will be considered.
While SCOPS granted this criterion without seeking further supporting evidence in its RFE, our review of the record shows that the evidence does not establish that the Petitioner meets this criterion. We first note that many of the materials do not meet the requirements under 8 C.F.R. § 204.5(g)(l). For example, the materials related to the Petitioner's claimed employment as an account manager with0 I Iconsist of a non-competition agreement dated September 1, 2017 and a "notice of termination letter" from the company dated April 13, 2020. Neither of these materials include a job title or description ofthe Petitioner's duties, and the agreement does not confirm the Petitioner's claim to have started in this position in 2016. We also note that the Petitioner claims to have worked for I Ibeginning in 2016, raising concerns about whether he was employed in either position on a full-time basis.
Another letter which does not meet the requirements under 8 C.F.R. § 204.S(g)(l) concerns the Petitioner's employment as an administrative analyst for I Ifrom January 2010 to February 2012. As with the documents described above, this letter does not include a description of the Petitioner's duties in this position.
As for whether the remaining materials sufficiently verify the Petitioner's experience in the occupation which he will pursue, the evidence suggests that he intends to continue in the position ofchief business officer forl Ior another future company, and would either continue with his current leadership role regarding sales and marketing efforts or oversee human resources consulting activities. In any case, the evidence indicates that he intends to serve in a high-level management or executive role, and in addition would continue to participate as a part owner in "making collective decisions about all aspects of the company." The remaining letters from his current and former employers, however, do not indicate that he has 10 years of full-time experience in such a position.
Beginning with the two letters from the Petitioner's business partners withl Ithey indicate that he began serving as an owner and chief business officer in February 2016. Ifwe were to consider all of his time in this position as qualifying under this criterion, it would equal 8 years and 3 months up to the date he filed his petition. However, as we note above, the Petitioner's claim to have also worked full-time for I I during at least 2 years and 8 months of this period raises significant concerns and potential inconsistencies about whether he was also concurrently working full-time for I I
Another employment letter from the human resources manager of. _________________. p. 5 in which he describes the Petitioner's duties at both Din Venezuela and as ~--------~ an assistant store manager withc=]in the United States. 4 The writer indicates that as a sales manager, the Petitioner built a client portfolio, supervised the sales team, updated price lists, coordinated order shipping, and drafted quarterly sales reports. It does not indicate that this position was a higher level managerial or executive role or one in which the Petitioner would have participated in making business decisions concerning the company's overall operations. Further, to the extent that the record indicates that the Petitioner intends to work in an occupation including duties relating to human resources, this letter does not indicate that he gained any such experience with this employer.
This letter also discusses the Petitioner's employment as an assistant store manager for approximately 4 months ate=] stating that he was responsible for the daily opening and closing of what appears to be a package shipping store. It further states that his duties also included customer service, receiving and shipping packages, and working as a cashier. The Petitioner has not shown that these duties involved sales management, business administration or human resources, so we will not credit this work experience towards the required 10 years in the occupation sought.
For all of the reasons discussed above, we disagree with and withdraw SCOPS' determination regarding this criterion and conclude that the Petitioner that he has 10 years of full-time experience in the occupation sought.
B. Commanded a Salary or Other Remuneration Demonstrating Exceptional Ability In order to meet this criterion, a petitioner must show that they have commanded a salary or other remuneration that is indicative of exceptional ability relative to others working in the same field. Id. Here, SCOPS noted in its decision that the Petitioner had submitted salary statistics for the position of human resources specialist, which it concluded did not provide a proper basis for comparison to the evidence of the Petitioner's earnings.
On appeal, the Petitioner asserts that his "effort is focused on human resources consulting, where [the Petitioner] has more than 13 years of experience." But there are two problems with this statement. First, as discussed above, there are unresolved inconsistencies in the record regarding the nature ofthe proposed endeavor. And there is no indication in the record that the Petitioner intends to work as a human resources consultant. 5 Rather, the inconsistency in the evidence involves whether the Petitioner will continue to manage sales and marketing activities or human resource consulting activities as a co-owner ofl Ior another company.
Second and more importantly, the record does not reflect that the Petitioner has the claimed experience in human resources consulting, or that the evidence of his earnings in the record reflect a salary or other remuneration for his provision ofhuman resources consulting services. That evidence, including individual and company federal tax filings for the years 2022, 2023, and 2024 as well as a letter from Istating that his "annual income is about $124,800," focuses on his earnings as the chief business 4 While the Petitioner claims that the writer is the owner of bothl Ithe letter indicates only that the writer "worked with" the Petitioner atDwithout naming his specific role. This is an additional discrepancy or issue that would need to be addressed in any further proceedings in this matter.
officer forl Letters from two of the Petitioner's business partners describe the duties of this pos1t10n in nearly identical terms, neither of which make any mention of human resources responsibilities. To the contrary, they describe the Petitioner's "creation of new sales strategies," planning and implementation of "various digital marketing and corporate branding campaigns," and his studying of market conditions "to develop the best tactics for market penetration and sustainability." Since the Petitioner has not shown that he earned a salary or other remuneration for providing services in the human resources field, the evidence relating to the average salary of a human resources specialist is irrelevant for the purposes of this criterion. Accordingly, the Petitioner has not established that he has commanded a salary or other remuneration that is indicative of exceptional ability relative to others working in the same field. As such, he does not meet this criterion. C. Recognition for Achievements and Significant Contributions to the Industry or Field This criterion requires evidence that a petitioner has received recognition for achievements and significant contributions to the industry or field from peers, governmental entities or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). SCOPS concluded that the reference letters submitted by the Petitioner in his RFE response did not demonstrate recognition for significant contributions to the industry or field but only achievements for a specific employer ( or more accurately client). SCOPS also determined that the letters were "outside the scope of the proposed endeavor," an apparent reference to their focus on the Petitioner's work as the chief business officer for a staffing company and not in the field of human resources consulting.
In his appeal brief, the Petitioner summarizes these same four letters and asserts that they show his "impact in multiple sectors, such as, human resources, business administration, hospitality, tourism, among others, since his work as been recognize from his employer, collogues and peers. [sic]" But as SCOPS correctly pointed out, these letters focus only on the quality of the services provided to these clients by the Petitioner, and do not establish that his contributions to these employers were considered to be significant to the hospitality industry or the field of human resources. The writers state that they were pleased with the staffing services provided byl Iand the Petitioner, but do not indicate that the contributions were significant to the field or reached beyond those clients. For example, A-Rwrites that his hotel experienced a reduction in staff shortages by over 60% and an improvement in room readiness by 35% as a result of the Petitioner's work in providing trained housekeeping staff. He also applauds the Petitioner's work in hiring and training the provided staff. But neither this letter nor the other three suggest that the Petitioner's work with I Iwas recognized as an achievement and significant contribution to the broader field of human resources.
Per the above analysis, we conclude that the Petitioner has not established that he meets this criterion. D. Final Merits Determination
Based on the foregoing analysis, the Petitioner has not established that he meets at least three of the evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii). Because he did not satisfy the initial evidence requirements, we need not conduct a final merits determination to determine whether the totality of the evidence shows that he is recognized as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Nevertheless, we advise that we have reviewed the record in the aggregate, concluding that it does not support a finding that the Petitioner p. 7 has established the recognition and expertise required for classification as an individual of exceptional ability.
Conclusion
The Petitioner has not established his eligibility for the EB-2 classification as an alien of exceptional ability. As he is therefore ineligible for a national interest waiver, we decline to reach and hereby reserve the issue of the Petitioner's qualification under the three prongs of 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).
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 1-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.