The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree or an individual of exceptional ability. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). The Petitioner also seeks a national interest waiver ofthe 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). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national interest to do so.
The Director of the Texas Service Center denied the petition, concluding that the record did not establish the Petitioner's eligibility for the EB-2 classification or for a 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 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
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. 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).
Profession is defined as one of the occupations listed in section 10l(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. 1 8 C.F.R. § 204.5(k)(3).
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 at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 3 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 a degree of expertise significantly above that ordinarily encountered in the field.
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that they merit a discretionary waiver ofthe job offer requirement "in the national interest." Id. While neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 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,4 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. 5
Analysis
The Petitioner asserts that he is both a member of the professions holding an advanced degree and an individual ofexceptional ability. The Director concluded that the Petitioner did not establish that he meets the EB-2 eligibility requirements. Upon review of the record, we conclude that the Petitioner has not demonstrated his qualifications as an advanced degree professional, nor has he demonstrated that he qualifies as an individual of exceptional ability.
A. Eligibility as a Member of the Professions Holding an Advanced Degree
The Petitioner refers to his vocation alternately as an industrial automation developer and a software developer. The Petitioner intends to continue his work developing software for heating, ventilation, and air conditioning (HV AC) systems, as well as refrigeration equipment. The record includes a certificate from a technical school in Brazil for a year-long training course in industrial automation 1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 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).
and several certificates for the completion of other shorter training programs in the Petitioner's field. On appeal, the Petitioner asserts that the Brazilian institution is "well-known" and "recognized by the UN as one of the three most important actors in technical and vocational education in the Southern Hemisphere." The record, however, does not contain evidence to show that the program the Petitioner completed with this institution is the foreign equivalent of either a U.S. bachelor's degree6 or advanced degree.Degree not shown to be a U.S. advanced degree equivalent The Petitioner also asserts that an expert opinion letter and an education evaluation previously submitted establish that the Petitioner has received "the equivalent of a US degree of Bachelor in Science in Information Technology." The letter and evaluation do not provide explanations of how the Petitioner's vocational coursework and work experience in Brazil equate to the receipt of a U.S. bachelor's degree. Although the letters discuss the relevance of the Petitioner's work experience in evaluating whether he has attained the foreign equivalent of a bachelor's degree, the regulation at 8 C.F.R. § 204.5(k)(2) does not provide for a substitution of vocational training and experience to be considered as the equivalent of a bachelor's degree; both the Act7 and the regulations contemplate only a single degree, not a combination of education and experience claimed as the equivalent, in aggregate, of a degree. We also note that the evaluation uses an argument to equate the Petitioner's work experience that does not apply to immigrant petitions, but to certain nonimmigrant petitions. Credential evaluations are reviewed for advisory purposes only; if questionable in any way, USCIS may give them less weight. Matter of Caron Int 'l, 19 I&N Dec. 791 (Comm 'r) 1988). Further, the record does not include evidence to demonstrate that the Petitioner's intended occupation is a profession requiring the attainment ofat least a bachelor's degree for entry. See 8 C.F.R. § 204.5(k)(3 ). The Petitioner has not established eligibility for the EB-2 classification as a member ofthe professions holding an advanced degree.
B. Eligibility as an Individual of Exceptional Ability
As noted above, to demonstrate eligibility as an individual of exceptional ability, a petitioner must initially submit documentation that satisfies at least three of six categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). The Director determined that the Petitioner met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) but did not meet the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B)-(F). An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution oflearning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
The record shows that the Petitioner has earned certificates relating to his claimed area of exceptional ability. We agree with the Director that the record satisfies this criterion.
Evidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years offull-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B).Five years of progressive experience not documented
The record includes letters from previous clients attesting to their experience with the Petitioner's services. 8 Most of these letters, however, reference only general dates of services received between 2010 and 2021. One letter from an HVAC company states that the Petitioner has worked for the company in various capacities for eleven years; however, the letter does not specify whether the Petitioner was employed full- or part-time, provide specific dates of employment, or describe the Petitioner's duties in his positions with the company. The letters do not serve as evidence of a continuous timeline of full-time employment over a period of at least ten years.
9 We agree with the
Director that the record does not satisfy this criterion.
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 Director detennined that the Petitioner's certifications are not licenses to practice a profession or occupation. However, the Director overlooked the fact that the record includes credible evidence of certifications that the Petitioner has received for his occupation. Thus, we disagree with the Director's determination with regard to the Petitioner's eligibility under this criterion. The record satisfies this criterion because the Petitioner has a certification for his particular occupation. We therefore withdraw the Director's determination regarding this criterion.
Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D).
The record includes paychecks and invoices that alternately refer to the Petitioner as a developer and a refrigeration technician. The record also includes a printout from a salary comparison website showing the average salary of an entry-level software developer in Brazil in 2023. Because the Petitioner's tax returns are from 2019, 2020, and 2021, it is not clear whether the Petitioner's income during those years may have been higher than the average income for a software developer; the record does not contain salary comparisons for those years. In addition, the record does not contain credible evidence demonstrating that the Petitioner's income during those years or any other year was a result of his purported exceptional ability. We note that a letter from one HV AC company states the following (quoted as written):
[The Petitioner] is always looking to expand his knowledge and that is why he become a fundamental part of our company on these 11 years working together here at our business, also because of that he always had an better income than average programmers and developers in this market. . . . [The Petitioner] had an special annual income above the average because of his special skills developing business solutions and software to our partners and customers, so he turned in an exceptional person and necessary for the whole country after develop many solutions around the world.
While this HV AC company claims that the Petitioner received a higher-than-average salary for his work, we do not consider this to be credible evidence to demonstrate the Petitioner's eligibility under 8 While we have not listed each piece of evidence separately, we have reviewed the entirety of the record. 9 See 8 C.F.R. § 204.S(g)(l) (stating that evidence relating to qualifying experience shall be in the fonn of letters from current or former employers and shall include the name, address, and title of the writer, and a specific description of the duties). p. 5 this criterion for several reasons. The company has not provided dates or positions in which the Petitioner received a higher salary for his purported exceptional ability in a particular field. The company also does not provide the Petitioner's salaries at a given time or in a given position. Although several pay statements from the company show that the Petitioner worked as a refrigeration technician, the record does not contain evidence of the average salaries of refrigeration technicians during the time ofthe Petitioner's employment in that position. Further, the company's claim that the Petitioner's income has been based on his "special skills" is not supported by probative evidence from customers or other parties with knowledge of his work to demonstrate his exceptional ability.
10 Moreover, a statement from the Petitioner indicates that he was self-employed during a portion of his time with this HV AC company; it is not clear how the Petitioner's income was affected by his self-employment during his time with the HV AC company. Notably, his tax returns may reflect higher income amounts unrelated to his purported exceptional ability. We agree with the Director that the record does not satisfy this criterion.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Petitioner has submitted evidence to show that he has been a member of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) since November 1, 2022. As this membership post-dates the filing date of his petition, we will not consider this evidence. 11 Eligibility must be established at the time of filing. 8 C.F.R. § 103 .2(b)(1 ).Not eligible at the time of filing We agree with the Director that the record does not satisfy this criterion.
Evidence ofrecognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); 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).
Conclusion
The Petitioner has not established that he meets the requirements of EB-2 classification. His petition will remain denied.
ORDER: The appeal is dismissed.