The Petitioner, a business administrator, seeks classification as an individual of exceptional ability in the sciences, arts, or business. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i).
The Director of the Nebraska Service Center denied the petition, concluding that the record did not demonstrate the Petitioner's eligibility 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 ofproofto demonstrate eligibility by a preponderance ofthe evidence. Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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, under section 203(b )(2)(B)(i) of the Act. 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 of a master's degree. 8 C.F.R. § 204.5(k)(2). 1
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 1 Although the Petitioner initially asserted that she is an individual of exceptional ability, as stated by the Director in the request for evidence, the record establishes that she is an advanced degree professional. p. 2 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 We will then conduct a final merits determination to determine 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. 4Exceptional ability not established
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an individual of exceptional ability, 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 discretion5, grant a national interest waiver ifthe 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.
As set forth in Dhanasar, a petitioner must identify the specific endeavor they propose to undertake. Id. at 889. In order to determine whether an individual qualifies for a national interest waiver, we must rely on the specific proposed endeavor to determine whether (1) it has both substantial merit and national importance and (2) they are well positioned to advance it.
As explained by the Director, the Petitioner's proposed endeavor as a business administrator initially "focused on administrative services and facilities managers" and, in response to the request for evidence (RFE), "changed to financial manager." The decision informed the Petitioner that she (1) appeared to make material changes to her proposed endeavor in the RFE response and (2) must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971).Not eligible at the time of filing
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(l2). A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Ifsignificant, material changes are made to the initial request for approval, a petitioner must file a new petition rather than seek approval of a petition that is not supported by the facts in the record. A new set of facts regarding the proposed endeavor would be material to eligibility for a 2 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).
national interest waiver under Dhanasar's first and second prongs. See Michelin Tire Corp., 17 T&N Dec. at 248; see also Dhanasar, 26 I&N Dec. at 889-90.
On appeal, the Petitioner does not dispute, or even address, the change in her proposed endeavor. Therefore, we deem this issue 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); see also Sepulveda v. US. Att 'yGen., 401 F .3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (finding the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). When an appellant fails to properly challenge one or more of the grounds upon which the Director based their conclusion, the filing party has abandoned any challenge ofthat ground or grounds, and it follows that the adverse determination will be affirmed. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); United States v. Cooper, No. 17-11548, 2019 WL 2414405, at *3 (11th Cir. June 10, 2019).
As we are unable to ascertain the Petitioner's specific proposed endeavor because she provided inconsistent information ( and did not address the issue on appeal), we cannot conclude that she has established its substantial merit and national importance or that she is well-positioned to advance it.Inconsistencies in the record Further, because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's remaining appellate arguments. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that "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 T&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
ORDER: The appeal is dismissed.