The Petitioner, a financial and investment analyst and entrepreneur, seeks employmentbased second preference (EB-2) immigrant 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.
The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualifies for the requested EB-2 classification. The Director further determined that the Petitioner did not establish that a waiver of the job offer requirement would be in the national interest. 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 l&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.
To establish eligibility for a national interest waiver, a petlt10ner must fust demonstrate their 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) 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. 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 as an individual ofexceptional 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 USCIS may, as matter of discretion, 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.
As noted, the Director denied the petition based on two independent and alternative grounds. First, the Director determined that the Petitioner did not establish his eligibility for classification as individual of exceptional ability in the sciences, arts, or business. The Director concluded that the Petitioner satisfied only two of the six initial evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), and therefore found him ineligible for this EB-2 classification without considering the evidence in the context of a final merits determination. Further, the Director concluded that the Petitioner did not establish that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. Specifically, the Director determined that the Petitioner did not demonstrate that he meets any of the three prongs of the Dhanasar analytical framework.
In his appellate brief, the Petitioner directly quotes the Director's determination that "USCIS does not find the petitioner to be an individual of exceptional ability." However, he does not otherwise address or contest the Director's specific findings regarding his eligibility for this classification; the remainder of the brief solely discusses his eligibility for a national interest waiver under the Dhanasar framework. Therefore, we deem the Director's adverse determination on the issue of the Petitioner's eligibility for the requested EB-2 classification to be waived. If the affected party does not address issues raised by the director, and those issues are dispositive of the case, the appeal will be dismissed based on those waived issues. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). Because a petitioner must demonstrate eligibility for the underlying EB-2 classification in order to be eligible for a national interest waiver of the classification's job offer requirement, this issue is dispositive of the outcome of this case, and the petition cannot be approved.
Moreover, since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding his eligibility for a national interest waiver. 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).
The appeal will be dismissed because the Petitioner has not established his eligibility for EB-2 classification as an individual of exceptional ability in the sciences, arts, or business. ORDER: The appeal is dismissed.