The Petitioner seeks classification as an individual of exceptional ability in the sciences, arts, or business. 1 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 Texas Service Center denied the petition, concluding that the Petitioner did not establish eligibility for 1) the underlying classification and 2) 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 ofthe evidence. Matter ofChawathe, 25 I&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.
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).
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 1 The Petitioner initially claimed that he is an individual of exceptional ability. In response to the Director's notice of intent to deny (NOID), he asserted that he qualifies as an advanced degree professional.
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.
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 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.
Contrary to counsel's statement on appeal, the Director did not determine that the Petitioner is an advanced degree professional. Rather, the Director discussed the submitted evidence and explained why the Petitioner did not establish that he qualifies for the underlying classification as either an advanced degree professional or an individual of exceptional ability. 5 Because the Petitioner does not contest the Director's conclusion that he does not qualify for the underlying EB-2 classification, 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 y Gen., 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); Desravines v. US. Atty. Gen., 343 F. App'x 433, 435 (11th Cir. 2009) (indicating that a passing reference in the arguments section of a brief without substantive arguments is insufficient to raise that ground on appeal). When an appellant fails to properly challenge one or more ofthe grounds 3 USCTS has previously confirmed the applicability of this two-palt adjudicative approach in the context of aliens of exceptional ability. See generally, 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 4 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
upon which the Director based their conclusion, the filing party has abandoned any challenge of that 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).
Because the Petitioner has not demonstrated eligibility for the underlying classification, we need not consider whether he merits a discretionary waiver ofthe job offer requirement "in the national interest" and, therefore, reserve the issue. See INSv. 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 has not otherwise met their burden of proof).
ORDER: The appeal is dismissed.