The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree and 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 of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as a member of the professions holding an advanced degree or as an individual of exceptional ability, and that he had not had not established that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest. The matter is now before us on appeal.
The Petitioner bears the burden ofproofto demonstrate eligibility by a preponderance ofthe 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
An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent ofa master's degree. 8 C.F.R. § 204.5(k)(2). In addition, "profession" is defined as of the occupations listed in section 101(a)(32) ofthe Act, as well as any occupation for which a United States baccalaureate degree 1 or its foreign equivalent is the minimum requirement for entry into the occupation. § 204.5(k)(3). 8 C.F.R.
Furthermore, "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 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. p. 2 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. determination 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.
I f a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 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 ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 3 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.
Analysis
A. Member of the Professions Holding an Advanced Degree
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied by "[a]n official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present "[a]n official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien 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 stated that he started computer science courses at _ _ _ _ _ _ _ _ _ _ _ _ I lin Brazil, but he did not present an official academic record showing that he received a degree from the university. In addition, the Petitioner submitted a certificate from Data Kbyte® stating that he completed instruction in "Windows 98, Word, Excel, and Access." He also provided a certificate from Google AdWords indicating that he successfully completed "the Google AdWords certification exams." These certificates, however, do not constitute a U.S. advanced degree, a U.S. baccalaureate degree, or their foreign equivalent. Accordingly, the record supports the Director's determination that the Petitioner has not established that he qualifies as a member of the professions holding an advanced degree.
USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5.
See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
If a petitioner does so, we will then conduct a final merits p. 3 I
B. Exceptional Ability
The Petitioner asserted that he 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 academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A).
In the appeal brief, the Petitioner maintains that he also meets the ten years of full-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the membership criterion at 8C.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 agree with the Director that the record does not support a finding that the Petitioner satisfies the requirements of at least three criteria.
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area o f exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
The Petitioner presented his certificate from Data Kbyte® stating that he completed instruction in "Windows 98, Word, Excel, and Access." He also provided his certificate from Google AdWords indicating that he successfully completed "the Google AdWords certification exams." These certificates, however, are not official academic records. Nor has the Petitioner provided evidence demonstrating that Data Kbyte® or Google AdWords constitute "a college, university, school, or other institution ofleaming." For the aforementioned reasons, we withdraw the Director's determination that the Petitioner meets this criterion.
Evidence in theform ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offitll-time experience in the occupationfor which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) As evidence of his ten years of business experience, the Petitioner submitted a May 2021 letter from _ _ _ _ _ _ _ _ _ indicating he worked for the organization in "a full-time position, from February 2009 to July 2016 as a Manager" and "remotely on a full position, from August 2016 to November 2018 as a Consultant and Advisor." The Petitioner also presented a May 2021 letter from Istating that he served as a full-time chiefoperating officer and manager from February 2006 until January 2009. These two letters listing the Petitioner's business operations experience are sufficient to demonstrate that he has at least ten years of full-time experience in his occupation. Accordingly, the Petitioner has established that he meets the requirements of this regulatory 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).
The letter from _ _ _ _ _ _ _ _ _ stated that the Petitioner received R$ 252,000 in 2015, R$ 176,400 in 2016, R$ 131,000 in 2017, and R$ 120,100 in 2018. In addition, the letter from _ Iindicated that he received monthly compensation in the amount of R$ 20,000 from February 2006 until January 2009. The Petitioner also submitted information from Salario BR listing the I p. 4 corresponding salaries for entrepreneurs at small, medium, and large organizations at various levels To satisfy this criterion, the evidence must show that an individual has commanded a salary or remuneration for services that is indicative of their claimed exceptional ability relative to others of experience.
The Petitioner states on appeal that the information from Salario BR provides "the average salaries in small and medium sized businesses at different managerial positions." The Director's decision noted that the Salario BR survey was limited to a sampling of 100 salaries and that this criterion requires the Petitioner to demonstrate a salary indicative of exceptional ability and not just "above average" earnings in his occupation. Additionally, the Salario BR information listed a "data validity" period from "12/26/18 to 12/26/19." Because the Salario BR information is contemporaneous with only one ofthe years for which the Petitioner has documented his salary (2018), he has not shown that the former provides a proper analysis of his pre-2018 earnings. Here, the Petitioner has not offered documentation showing that his earnings are indicative of exceptional ability relative to others in the field. Based on the foregoing, we agree with the Director that the Petitioner has not demonstrated he meets this regulatory criterion.
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Petitioner contends that his membership in t h e meets this criterion. As evidence for this criterion, the Petitioner provided his _ membership card and a declaration from the organization's chairman stating thatl Iis "a scientific, non-profit society that has the following purposes: the study, development, promotion, and dissemination of open, flexible and distance learning." The chairman's declaration further asserted that registration in the organization requires "a level of deep knowledge, by training and/or working time in the minimum area of 10 years' exP,erience." The Director indicated that the aforementioned information was not corroborated by theI Imembership bylaws or other official association documents. The evidence presented is not sufficient to demonstrate thatl lhas a membership body comprised of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the Accordingly, we agree with the Director's determination that the Petitioner has not satisfied this criterion. 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).
As evidence for this criterion, the Petitioner provided a Certificate of Achievement (February 2018) in recognition of his "exceptional achievement and contribution to the I 7 The Petitioner also submitted a letter from Chairman of the Cit Council of working in the field. organization otherwise constitutes a professional association.
I
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the occupations listed in section 101(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."
stated: "I am responsible to the City Council for the implementation of t h e I supervised all the steps o f execution until the end. Numerous adjustments were necessary to adapt to our reality and meet the demands and [the Petitioner] was always quick to perform tasks and with extreme professionalism." Likewise, the Petitioner provided a letter froml Imayor of the city of I Iindicating that his municipality planned to implement thel Iin "2020, officially to more than 200 students." I Ifurther asserted that the Petitioner is "a visionary in how to use the technology tools to make our lives better." The aforementioned certificate and letters reflect local recognition from two Brazilian municipalities and therefore they are not sufficient to demonstrate the Petitioner's achievements and significant contributions to the industry or field. For instance, the Petitioner's evidence was unaccompanied by documentation indicating that his work involving the _ _ _ _ _ _ _ _ _ has significantly affected the online learning industry or entrepreneurial field.
The Petitioner also submitted recommendation letters from business associates describin his work for For example, owner of _ _ _ _ _ stated: "I can say with certainty that not only is [the Petitioner] fully up-to-date with the American business system, but he also has the ability to help businesses grow superbly. He quickly understands what needs to be done, has the flexibility to implement, and is very passionate about challenges." I Ipraised the Petitioner's business skills and his impact on business operations, but he did not explain how the Petitioner's work was recognized for achievements and significant contributions to the industry or While the recommendation letters discuss the Petitioner's business projects on behalf of the above organizations, the evidence does not show that his work has had an impact beyond his employers, clientele, and their specific projects at a level indicative of achievements and significant contributions to the industry or field.No broader implications shown The Petitioner therefore has not established that he fulfills 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
C. National Interest Waiver
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, is in the national interest. As previously outlined, in order 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 Formal recognition in the form of certificates and other documentation that are contemporaneous with the individual's claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the individual's achievements. See 6 USCIS Policy Manual, supra, at F.5(B)(2).
he has satisfied the regulatory criteria and achieved the level of expertise required for exceptional ability classification. Accordingly, the Petitioner has not established eligibility for the underlying EB-2 immigrant classification. Since this issue 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) ("courts and agencies are not required to make findings on issues the decision ofwhich is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
Conclusion
The Petitioner has not established that he satisfies the regulatory requirements for classification as a member of the professions holding an advanced degree or as an individual of exceptional ability. 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.