The Petitioner, a chemical technician, 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 record did not establish that the Petitioner is eligible for underlying immigrant classification as an individual of exceptional ability. Furthermore, the Director determined that the Petitioner had not shown that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 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 ofChawathe, 25 l&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
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). 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 of expertise and will substantially benefit 1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). p. 2 the national economy, cultural or educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act.
If a 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,2 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 has a degree as a chemical technician and has experience working in manufacturing, development, and management of installation of non-toxic epoxy products in industrial settings. His proposed endeavor is to "improve the health, safety, and environment of the United States by manufacturing, developing, and managing installations of eco-friendly products for painting and coating." He explains that he will develop and use water-based epoxy paints and coatings and claims this will "contribute significantly to various industries by improving efficiency, reducing environmental impact, and enhancing safety standards, collectively benefiting the economy, environment, and society in the United States."
A. Exceptional Ability
In reviewing the Petitioner's eligibility for the underlying EB-2 visa classification, the Director concluded that the evidence did not establish that he met the requisite three of the six evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) to demonstrate his eligibility as an individual of exceptional ability. Specifically, the Director stated that the Petitioner met the criteria related to a degree or diploma relating to the area of exceptional ability criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and evidence of at least ten years of full-time experience in the occupation for which he is being sought at 8 C.F.R. § 204.5(k)(3)(ii)(B). However, the Director concluded that the Petitioner did not meet the requirements of two other criteria for which he submitted evidence. On appeal, the Petitioner maintains that he also meets the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) and the recognition for achievements and significant contributions to the industry criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). Our de novo review indicates that the Petitioner has not met at least three criteria under 8 C.F.R. § 204.5(k)(3)(ii) and therefore has not established his eligibility as an individual of exceptional ability. 2 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts of Appeals in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature). p. 3 1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution oflearning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
We agree with the Director that the Petitioner has met the criterion related to a degree or diploma relating to the area of exceptional ability criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), as he submitted a copy of his degree as a chemical technician.
2. Evidence in the form ofletter(s) from current or.former employer(s) showing that the alien has at least ten years offull-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B).
Upon de novo review, we disagree with the Director that the Petitioner met the criterion of at least ten years of full-time experience in the occupation under 8 C.F.R. § 204.5(k)(3)(ii)(B). The plain language of this criterion states the evidence must (1) be in the form of letter(s), (2) be from current or former employer(s), and (3) establish at least ten years of full-time experience. Id. As evidence to support his claim that he meets this criterion, the Petitioner submitted a letter froml I .___---,,13 CEO ofl I a non-toxic paint and coatings company the Petitioner co-founded in Argentina.I I states the Petitioner owned fifty percent of the company's shares and served as Commercial and Technical Manager from September 20054 through April 2021. However.I I does not state whether the Petitioner worked full time. The Petitioner also provided a copy ofthe 2004 contract establishing I I as a limited liability company and listing I Iand the Petitioner as managers, partners, and co-owners, but this document does not indicate the Petitioner's work hours, nor is it a letter from the Petitioner's current or former employer showing that he has at least ten years of full-time experience.
Additionally, the Petitioner submitted a letter from a certified public accountant who worked for the Petitioner at I I. The accountant states that the Petitioner was co-owner of the company and worked as Commercial and Technical Manager from September 2004 through April 2021.
However, the Petitioner's accountant was his employee, not his employer, and this letter also does not mention whether the Petitioner worked full time. Without more, we cannot conclude that the Petitioner has met the required elements of this criterion to establish at least ten years of full-time experience in the occupation as required by 8 C.F.R. § 204.5(k)(3)(ii)(B). Although the Director concluded that the Petitioner met this criterion, we hereby withdraw that finding.
3. Evidence that the alien has commanded a salwy, or other remuneration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D).
On appeal, the Petitioner also asserts that he commanded remuneration for services that demonstrate his exceptional ability and therefore meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). The Petitioner initially submitted a Certification of Services and Remunerations from the~ ________.....,....... office in Argentina showing his monthly and annual income from 2013 through 2021, but he did not 3 Other evidence in the record lists this individual's name asl IWe will refer to him by the name he used in his letter.
provide information about how his salary compared to others in his field. He also provided a letter from his company's accountant, but it did not list his income. In response to a request for evidence (RFE) from the Director he provided his personal income tax returns, salary sheets from the Collective Bargaining Agreement of the Personnel Union ofl Iand a chart from his accountant comparing his annual salary to that listed for chemical technicians on the unionissued salary sheets.
However, the salary information in the comparison chart created by the Petitioner's accountant is not consistent with his tax returns or the union-issued salary sheets. For example, the chart indicates that in 2020, the Petitioner's salary was $1,140,000 Argentinian pesos, while the official, union-approved salary for a chemical technician was $557,712 pesos. Based on this information, the Petitioner claims his salary was two times higher than other professionals in his field in 2020. However, the Petitioner's tax return for 2020 indicates that his net income for that year was $1,152,500 pesos, the "tax result" was $1,080,611.68 pesos, and the taxable net profit was $72,047.59 pesos. Additionally, the Certification of Services and Remunerations he previously submitted states that his total remuneration in 2020 was $1,050,000 pesos. It is unclear how the Petitioner or his accountant determined that he earned a salary of $1,140,000 pesos in 2020, as this number is not reflected on the documents he provided.
Additionally, although the chart from the Petitioner's accountant states the official salary for a chemical technician in 2020 was $557,712 pesos, the union-issued salary sheets the Petitioner provides show that in 2020, the monthly salary for a "category 35" chemical technician was $51,096, which equals $613,152 Argentinian pesos annually if multiplied by twelve months, and the monthly salary for a "category 36"5 chemical technician was $54,703, which totals an annual rate of $656,436 pesos. The salary listed on the chart therefore does not match this information. Additionally, the salary sheet reflects that in 2020, "[f]or each year of service in the company, monthly paid personnel will receive the sum of $478.50 per month." Accordingly, a chemical technician who, like the Petitioner, had 15 years of service at their company as of the effective date of the salary sheet on January 3, 2020, would earn an additional annual income of $86,130 pesos due to their seniority, bringing their total annual salary to $699,282 pesos for a category 35 employee and $742,566 pesos for a category 36 employee. These numbers are substantially different from the salaries listed on the comparison chart the Petitioner provides, and the same types of discrepancies in the numbers exist for the other years listed on the chart, 2015 through 2019.Inconsistencies in the record
We acknowledge that the Petitioner's annual salary as reflected on his tax returns is higher than the information listed on the union salary sheets. However, due to the discrepancies between the comparison chart the Petitioner provided and the other information he submitted regarding both his own salary and the typical salaries of chemical technicians, we cannot determine the accuracy of the Petitioner's claims about how his salary compared to others in his field. Furthermore, the Certification of Services and Remunerations the Petitioner provided reflects that his "Trade or occupation" is that of a "manager." Although it states that the "Activity of the firm" is "manufacturing paints, varnishes and coating products," it is not clear that the Petitioner was compensated for a job as a chemical technician or for a managerial role, such that salary comparisons to a more senior managerial 5 It is unclear from the record whether the Petitioner was a category 35 or 36 chemical technician. p. 5 occupation would be more appropriate. Accordingly, based on the evidence in the record, we cannot conclude that he meets the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D).
4. 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).
The Petitioner also claims on appeal that he meets the recognition for achievements and significant contributions to the industry or field criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). In support of his claim regarding this criterion, the Petitioner initially submitted the letter froml Ihis partner and cofounder at I I stating that the Petitioner worked as the company's Commercial and Technical Manager, "which resulted in significant benefits for the company's financial goals and the development of new technologies ...." I I letter lists the Petitioner's duties and some of the major projects the company completed while he was the Commercial and Technical Manager. It states he "has extensive experience in his field of endeavor" and recommends him. However, despite describing the Petitioner's contributions to his company's success, I Idoes not claim that the Petitioner has received recognition for achievements and significant contributions to the industry or field from peers, government entities, or professional organizations. The Petitioner also submitted a letter from the maintenance manager at I I Argentina, an automobile and metal parts manufacturing company that hired the Petitioner to install epoxy flooring at their facilities. The letter discusses the Petitioner's expertise and experience and states he is well-suited to pursue his proposed endeavor. A letter from an industrial engineer ate=] a manufacturer of components for industrial activities, similarly states that D hired the Petitioner's company to install non-toxic epoxy coating in their plant, providing excellent results, and that the United States would benefit from the Petitioner's experience and knowledge. I I the owner of a construction company serving wine producers in Argentina, states in a letter that his company hired the Petitioner to install aqueous epoxy flooring in a warehouse. I I highly recommends the Petitioner's services and says he will contribute to his industry. The owner ofanother company in Argentina,c=], also attests to the quality and innovation of the Petitioner's services and states he has an exceptional ability to produce nontoxic products for the painting and coating industry.
While we acknowledge that these letters reflect customer satisfaction with the services the Petitioner provided through his company in Argentina, they are not letters from members of his industry that indicate any recognition for achievements or significant contributions to the field. Rather, they reflect that the Petitioner was hired to install water-based epoxy surfaces in the warehouses and other properties of various companies and that the customers were pleased with the quality and safety benefits of his products.
In response to the Director's RFE, the Petitioner submitted a new letter from I Inoting that his construction firm hired the Petitioner's company to help with a large flooring and painting project at a winery I Illttests that the Petitioner's expertise was essential to the success of the project. The Petitioner also provides a copy of the job description requesting bids relating to the project with I company, but this document does not specifically mention the Petitioner, his company, or his product. Additionally, the RFE response included a letter from I O l Director of a I p. 6 company "providing construction and maintenance services to gas and oil companies."6 ~I----~ states that his company hired the Petitioner to provide technical advice on epoxy coatings to be applied in a project "enhancing and recovering two reservoir tanks" on a gas pipeline. The Petitioner's expertise allowed! Icompany to use water-based epoxy in the tanks, minimizing safety and environmental risks. Again, while the letters from Ishow that they were satisfied with the Petitioner's services and would recommend him, it does not indicate that the Petitioner has received any recognition from others in his field for achievements or significant contributions to his industry.
The Petitioner also submitted with his RFE an expert opinion letter from I Ia professor and Academic Manager in the Department of~C_h_e_m-is-t-ry_a_t_____ I I The Petitioner argues on appeal thatl Iletter "provides an aca em1c validation of [his] exceptional abilities and contributions." However, the expert opinion letter explicitly addresses only the three national interest waiver requirements outlined in Matter of Dhanasar: whether the Petitioner's proposed endeavor has substantial merit and national importance, whether he is well-positioned to advance the proposed endeavor, and whether, on balance, waiving the requirement of a job offer would benefit the United States. Although ~I-------~ discusses the Petitioner's years of experience and expertise in creating non-toxic, water-based epoxy products and references the recommendation letters we mentioned above, his letter does not specifically address whether the Petitioner meets the recognition for achievements criterion at 8 C.F .R. § 204.5(k)(3)(ii)(F) or otherwise meets the legal requirements as an individual of exceptional ability. We acknowledge that the Petitioner has expertise and work experience in his field. However, although he is held in high regard by his prior customers and business partner due to his success on projects for which his company was hired, he has not submitted "[ e ]vidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations," as 8 C.F.R. § 204.5(k)(3)(ii)(F) requires.
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). Therefore, he has not demonstrated that he has achieved the level of expertise required for exceptional ability classification.
B. 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 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. Because this issue is dispositive of the Petitioner's appeal, we will not reach and hereby reserve the appellate arguments regarding his eligibility for a national interest waiver I Istates in the body of bis Jetter that his company is called which is consistent with the Petitioner's claims, but the letterhead spells it I I ._____.
I I p. 7 under the Matter ofDhanasar 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.