The Petitioner, a content creator and producer in the film industry, seeks employment-based second preference (EB-2) immigrant classification 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 had not established eligibility as an individual of exceptional ability and that a waiver ofthe required job offer, and thus of the labor certification, would be in the national interest. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 1 Section 203(b )(2)(B)(i) 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. 3 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 1 As the Petitioner has not claimed to qualify as a member of the professions holding an advanced degree, we need not address the separate requirements for that classification.
in its totality shows that they are recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 4
We acknowledge and agree with the Petitioner that the decision incorrectly referenced individuals of extraordinary ability. However, this error was, at most, harmless. See generally Matter ofO-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) (citing cases regarding harmless or scrivener's errors). Here, the Director properly considered the evidence under the exceptional ability criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) and not the extraordinary ability criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), concluding that she only satisfied one criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A).Exceptional ability not established As the Petitioner does not address the Director's conclusions that she did not meet the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B)-(F), we consider them waived. 5
Because the Petitioner has only met one ofthe six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), she has not established eligibility for the underlying EB-2 classification as an individual of exceptional ability. Therefore, we need not reach a decision on whether, as a matter of discretion, the Petitioner is eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework.
Accordingly, we reserve these issues. 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 alternate issues on appeal where an applicant is otherwise ineligible).
ORDER: The appeal is dismissed.