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 Petitioner's Form 1-140, Immigrant Petition for Alien Workers, concluding that the Petitioner did not establish his underlying eligibility for EB-2 classification as an individual of exceptional ability, and furthermore that he did not establish he merited a national interest waiver. 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 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.
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.2 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 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, 3 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.
The Director found that the Petitioner met four of the six categories ofinitial evidence for establishing exceptional ability. 4 Specifically, the Director indicated the Petitioner satisfied the following criteria: official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A); ten years of experience at 8 C.F.R. § 204.5(k)(3)(ii)(B); membership in professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E); and recognition for achievements and significant contributions to the industry at 8 C.F.R. § 204.5(k)(3)(ii)(F). Because the Petitioner fulfilled at least three criteria as required, the Director conducted a final merits determination, ultimately concluding the Petitioner did not possess a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business to establish that he is an individual of exceptional ability.Exceptional ability not established
On appeal, the Petitioner claims he also meets the criteria for salary at 8 C.F.R. § 204.5(k)(3)(ii)(D) and, with regard to the final merits determination, that the evidence in its totality shows he is an individual of exceptional ability. Because the Director concluded the Petitioner met at least three criteria, we need not make a determination on the Petitioner's other claimed criteria. However, we will evaluate the totality of the evidence in the context of the final merits determination.
The Petitioner provided evidence showing he graduated first among 19 students in his pilot training class in 1993. Since that time, the Petitioner has been an airline pilot and has recorded over 22,000 hours of flight time. The record also reflects that he has been certified to operate six different types of aircraft. 5 He provided a letter of recommendation wherein the author asserted that the Petitioner has been a member of the Ethiopian Airline Pilot Association (ALP-ETH) since 1993 and has served in that organization in varying capacities, including as a leader of two departments for a total of 10 3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature).
years, as president for approximately 16 months, and as a special advisor to the president since 2022. He also provided a commendation letter that attests generally to the Petitioner's experience as an airline pilot, and a paystub from September 2023.Support letters generic or unsupported The Petitioner does not sufficiently explain or provide other probative evidence, however, to establish how the duration of his experience and hours of flight time logged, or his certification to operate certain aircraft, yields a level of expertise significantly above other pilots. 6
Additionally, while the author ofthe letter ofrecommendation generally claims that the Petitioner was involved in the ALP-ETH, the record does not contain documentation to corroborate the information in the letter. Furthermore, the record does not include evidence detailing the nature, responsibilities, or requirements of his membership in ALP-ETH, or for the respective leadership positions he purportedly held, to establish he possesses a degree of expertise significantly above that ordinarily encountered.
Finally, while the Petitioner claims that he has commanded a salary demonstrating exceptional ability, the single paystub for September 2023 he provided is insufficient to extrapolate to an annual income. 7 Additionally, even ifwe were to accept the Petitioner's claimed annual income based on this paystub, which we do not, the Petitioner does not explain or provide other sufficient evidence showing how earning more than another average airline pilot by itself, or in conjunction with the other evidence in the record, establishes that he possesses the requisite expertise to establish he is an individual of exceptional ability.
The record as a whole, including the evidence discussed above, does not establish the Petitioner's eligibility for the underlying EB-2 visa classification as an individual of exceptional ability. As noted above, the Director also concluded that the Petitioner did not establish that he merited a national interest waiver. While the Petitioner also contests this conclusion on appeal, since our determination that the Petitioner did not establish eligibility for the underlying EB-2 visa classification is dispositive of his appeal, we decline to reach and hereby reserve the appellate arguments on this issue. 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).
ORDER: The appeal is dismissed.