The Petitioner seeks second preference immigrant classification as an individual ofexceptional 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 ofthe Nebraska Service Center denied the petition, concluding that the Petitioner had not established that he was individual of exceptional ability or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
On appeal, the Petitioner submits a brief and additional evidence asserting that the Director's decision was m error. 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 nova review, we will dismiss the appeal.
Law
To establish eligibility for a national interest waiver, a petitioner mustfirst demonstrate qualification for the underlying EB-2 visa classification (emphasis added), 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 10l(a)(32) ofthe 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 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 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
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
Analysis
In denying the petition, the Director determined that the Petitioner had met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (B). On appeal, the Petitioner asserts that he also meets the criterion at 8 C.F.R.
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 record includes a copy ofthe Petitioner's "Statement ofEarnings and Deductions" for November 2019 and for the period from Janua 1 2019 throu h November 30 2019, a~yment confirmation letter from the L __ _ _ _ _ _ _ _ _ _ _ ..,r-------, inL___J Sudan I l a printout regarding "Pay and Benefits" at t h e ~ - - - - - and a printout entitled "Household Income Percentile Calculator for the United States [2019] (HIPC)."
On appeal, the Petitioner argues that he meets this criterion because his annual gross income "is in the th 5
87 percentile ofU.S. household income." To satisfy this criterion, however, the evidence must show that he has commanded a salary or remuneration for services that is indicative of his claimed The "Statement of Earnings and Deductions" indicates that the Petitioner's job category is D ' his grade is D and his step is 0 ' According to the information from thel I certification. § 204.5(k)(3)(ii)(D). exceptional ability relative to others working in the field, not to the United States generally. The level of pay for staff in the Professional and higher categories that are recruited internationally is set by reference to the highest paying national civil service. Staff members in categories that are locally recruited are compensated in accordance with the best prevailing conditions of service locally.
As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter ofR-A-M-. 25 l&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 *l, *9 (E.D.N.Y. Sept. 30, 2011) ~laintitrs claims were abandoned as he failed to raise them on appeal to the AAO).
The printout also states that "[t]he base salary, which is determined by the grade of the post specified in the job opening and the existence of any dependents, is the same throughout theI I system." Notably, while the printout contains information for position categories Pl-P5 and Dl-D2, there is no information regarding the Petitioner'Ocategory. Regardless, based upon the information in the record, the Petitioner has not established that his remuneration is a result of his exceptional ability, as opposed to thel f standardized pay scale for his position and time in grade.
Without more, the Petitioner has not demonstrated that he meets this regulatory 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 Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the remaining issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which 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 appeal will be dismissed for the above stated reasons.
ORDER: The appeal is dismissed.