The Petitioner, a hairstylist, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability in the sciences, arts, or business 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).
The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the Petitioner qualifies for EB-2 classification as an alien of exceptional ability or that the Petitioner was eligible for the requested national interest waiver. 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.
Law
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 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. 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). 1 Meeting at least three criteria, however, does not, in and ofitself, establish eligibility for this classification. 2 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 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).
in its totality shows that they are recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 3
If 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 of Dhanasar, 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 discretion4 , 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
The Petitioner has not claimed-nor does record establish-that she is a member of the professions holding an advanced degree. Therefore, to qualify for EB-2 immigrant classification, the Petitioner must establish she is an individual with exceptional ability in the sciences, arts, or business. A. Individual of Exceptional AbilityExceptional ability not established
The Director concluded that the Petitioner is not an individual of exceptional ability as she only satisfied two of the six regulatory criteria, 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E), regarding ten years of full-time experience in the occupation sought and membership in a professional association. On appeal, the Petitioner contends that, in addition to these two criteria, 5 she meets the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (D), relating to having a license to practice the profession and commanding a salary or remuneration demonstrating exceptional ability. The Petitioner does not assert error in the Director's conclusions regarding the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (F), nor does she claim to meet these criteria on appeal, and therefore we consider the issue of eligibility under those two criteria to be waived. See Matter ofR-A-M-, 25 I&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).
On appeal, the Petitioner asserts that the Director cannot require that the evidence submitted both satisfy the regulatory criteria and establish that the Petitioner possesses a degree of expertise significantly above that ordinarily encountered in the field. We recognize that the Director's decision 3 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) ( discussing a two-part review where the evidence is first counted and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see generally 6 USCTS Policy Manual, supra, at F.5(B)(2).
incorrectly states the evidence submitted to establish each criterion "should address both parts of the analysis," yet upon a de novo review of the record, we conclude that, despite this erroneous statement, the Director's actual analysis of each criterion does not impose this standard. As such, the Director's error is, at most, harmless. See generally Matter of O-R-E-, 28 I&N Dec. at, 350 n.5 ( citing Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (stating that error is harmless where there is no "reason to believe that ... remand might lead to a different result" ( citation omitted))). Upon de novo review of the record, we agree with the Director's ultimate conclusion that the record does not establish the Petitioner is an individual of exceptional ability, but we withdraw their conclusions that the Petitioner meets the criteria 8 C.F.R. § 204.5(k)(3)(ii)(B) and (E). 6 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 she or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B)
The Director concluded that the Petitioner met this criterion. We disagree.
For ease of reference, we have detailed the Petitioner's claimed employment in the chart below, and identified whether the claimed employment is consistent throughout the documentation on record. Employment
Claimed in Record
Employment verification letter provided?
Listed on
ETA Form
750B?
Listed in
As detailed in the chart, the evidence on record contains several inconsistent accounts of the Petitioner's past employment.Inconsistencies in the record For example, the Petitioner submitted a letter froml I confirming her employment with the salon as a hairstylist from October 2006 to December 2009 and from December 2017 to January 2019, yet she did not identify this employment on the U.S. Department of Labor ETA Form 750B, Statement of Qualifications of Alien, nor is this consistent with her resume. The Petitioner also omitted her employment with from the ETA Form 750B.
Notably, the ETA Form 750B directs the Petitioner to list any employment "related to the occupation" she is seeking. Conversely, while her employment with Amonia Beauty Studio from August 2015 to December 2019 is listed on the ETA Form 750B, this employment is not corroborated by the Petitioner's official employment records, nor did she provide an employment letter verifying this employment.Support letters generic or unsupported The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).
Turning to the criterion in question, the regulation at 8 C.F .R. § 204.5(k)(3 )(ii)(B) requires"[ e ]vidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years of foll-time experience in the occupation for which he or she is being sought." As indicated above, the record contains employment verification letters from I Iverifying the Petitioner's employment with these salons; however, neither of the letters specify whether the employment was foll-time, nor is this information provided in the employment records book. The Petitioner also did not indicate the number of hours she worked in these positions on her ETA Form 750B. This information is particularly critical given that the Petitioner's claimed employment with I overlaps with her employment with
See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). On appeal, the Petitioner simply asserts that the evidence "clearly established this criterion has been met."
The Petitioner bears the burden of establishing that they meet each criterion with relevant, probative, and credible evidence. Matter ofChawathe, 25 I&N Dec. at 375-376. The Petitioner has not provided comparable evidence to evaluate the Petitioner's earnings versus other individuals in the field. As such, the Petitioner has not demonstrated that they meet the requirements for this criterion. Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Director stated that the record established the Petitioner met this criterion due to her membership in the Professional Beauty Association (PBA). We disagree.
The regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as an occupation listed at section 10l(a)(32) ofthe Act, 8 U.S.C. § 110l(a)(32), 8 or an occupation whose minimum requirement for entry is a U.S. baccalaureate degree or its foreign equivalent. According to the background documentation provided, PBA is "the largest trade organization" whose members "include independent practitioners, salons, spas, schools, students, manufacturers, distributors, and industry suppliers." Without evidence demonstrating that PBA requires at least a U.S. baccalaureate degree or its foreign equivalent as a minimum requirement for membership, we cannot conclude that the Petitioner meets this criterion, and we withdraw the Director's determination to the contrary.
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. Here, 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 the Petitioner's 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 of which is unnecessary to the results they reach"); see also Matter of L-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
As the Petitioner has not established that she qualifies for EB-2 classification, the appeal will be dismissed.
ORDER: The appeal is dismissed.