The Petitioner, an entrepreneur in the field of cargo transportation and logistics, seeks employmentbased second preference (EB-2) immigrant 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 Nebraska Service Center denied the petition, concluding the record did not establish the Petitioner was an individual of exceptional ability and that a waiver of the required job offer, and thus of the labor certification, 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 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 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).
substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act.
Ifa 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) 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 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.
In denying the petition, the Director determined the Petitioner met two ofthe six categories ofevidence at 8 C.F.R. § 204.5(k)(3)(ii): official academic record in the specialty at 8 C.F.R. § 204.5(k)(3)(ii)(A), and membership in professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E). For the reasons below, however, we must withdraw the Director's determination regarding the membership criterion.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Petitioner provided evidence to establish his membership in the American Management Association (AMA), along with a printout of AMA's website describing the organization, but he has not provided information regarding the qualifications for membership in this organization.
"Profession" is defined as the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 4 8 C.F.R. § 204.5(k)(3). Absent evidence which establishes that the AMA qualifies as a professional association, we cannot conclude the Petitioner meets this criterion and withdraw the Director's determination to the contrary.
On appeal, the Petitioner asserts that he also meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C). 5 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).
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C).
The Petitioner submitted a copy of his New York State Commercial Leamer Permit ( CLP), valid from April 2023 to April 2024, in support of this criterion. However, and as explained by the Director in their decision, the Petitioner must establish eligibility at the time of filing.Not eligible at the time of filing Therefore, we will not consider the CLP here. 6 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Further, we note that the Petitioner has not demonstrated that his CLP is a license to practice a profession, as defined by 8 C.F.R. § 204.5(k)(3). For these reasons, the record does not establish that the Petitioner satisfies this criterion.
Because the Petitioner has only met one of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii), he cannot fulfill the initial evidentiary requirement of three criteria. Thus, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of expertise required for exceptional ability classification. In addition, we need not reach a decision on whether, as a matter of discretion, the Petitioner is eligible for or otherwise merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reserve these issues. 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 alternate issues on appeal where an applicant is otherwise ineligible). The appeal is dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.