The Petitioner, a karting distributor, seeks second preference immigrant classification for the Beneficiary as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2).
The Director of the Texas Service Center denied the petition, concluding that the Beneficiary did not qualify for classification as an individual of exceptional ability. 1 The matter is now before us on appeal.
The Petitioner bears the burden of proof 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. 2
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. See 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 the beneficiary satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a beneficiary does so, we will then conduct a final merits 1 The Director's decision did not consider if the Beneficiary meets the requirements for a national interest waiver. 2 On appeal, counsel indicates that the Petitioner previously received ineffective assistance from a non-attorney who prepared its Form 1-140 petition. Nonetheless, the Petitioner's appeal provides it an opportunity to address the Director's adverse findings, and we review the record on a de novo basis. See Matter ofChristo 's, Inc. , 26 I&N Dec. at 537 n.2. 3 "[T]he possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution ofleaming or a license to practice or certification for a particular profession or occupation shall not by itself be considered sufficient evidence of such exceptional ability." Section 203(b )(2)(C) of the Act. p. 2 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. 4 If a petitioner demonstrates the beneficiary's eligibility for the underlying EB-2 classification, 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 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 discretion5, 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.
Analysis
A Exceptional Ability
The Petitioner asserted that the Beneficiary satisfies at least three of the regulatory criteria for classification as an individual of exceptional ability. In denying the petition, the Director determined that the Beneficiary fulfilled only the ten years of foll-time experience criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and the membership in professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). On appeal, the Petitioner contends that the Beneficiary also meets the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), the salary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), and the recognition for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). After reviewing the evidence, we agree with the Director that the record does not support a finding that the Beneficiary satisfies the requirements of at least three criteria.
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
In the appeal brief, the Petitioner states that "[the Beneficiary], having completed his high school education satisfactorily in Scotland in December 2000, immediately commenced his successful career in the industry ofcompetitive Karting in Europe in January 2001 as the Head Mechanic ofthd I I Iracing team in the United Kingdom." While the record includes the Beneficiary's resume listing his graduation froml IHigh School in 2000, the Petitioner did not provide an official academic record showing that the Beneficiary received his degree, diploma, certificate, or similar award from the school. Nor has the Petitioner shown that the Beneficiary's degree, diploma, certificate, or similar award froml IHigh School is in competitive karting.
The Petitioner further contends that the Beneficiary has "obtained specialized training as a race car mechanic that does not appear on his resume and that a professional evaluation of his training and experience could establish that his sophisticated technical knowledge and abilities and his many years of experience are equivalent to a qualifying degree in his field of expertise." This criterion, however, requires an official academic record showing that the Beneficiary has a degree from a college, university, school, or other institution of learning relating to the area of exceptional ability. The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) does not state that occupational experience and job training are acceptable in lieu ofan official academic record showing that the individual has a relevant degree. 6 Accordingly, we agree with the Director that the Petitioner has not shown the Beneficiary meets this criterion.
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offitll-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B)
We withdraw the Director's determination that the Beneficiary meets this criterion. 7 As evidence of the Beneficiary's ten years of experience as a kartin commercial research and business development manager, the Petitioner submitted letters from stating that the Beneficiary has worked for the company since 2010 and a letter from.__________. indicating that he was employed there from 2003 until 2009. These letters from both the Beneficiary's current and former employer, however, do not state that the Beneficiary's experience was "full-time" as a karting commercial research and business development manager. Without evidence demonstrating that the Beneficiary has at least ten years of"full-time" experience in the occupation sought, the Petitioner has not established that he meets the requirements of this regulatory criterion.
Evidence that the alien has commanded a salmy, or other remuneration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D).
In response to the Director's request for evidence (RFE), the Petitioner submitted the Beneficiary's 2022 Form W-2, Wage and Tax Statement, showing earnings of $18,000. The Petitioner stated that the Beneficiary "received $18,000 for the months of October, November, and December 2022" and that he "commands a monthly wage of $6,000, which equates to $72,000 annually." With the appeal, the Petitioner provides earnings statements for the Beneficiary dated October and November 2022 showing that he received "gross pay" of $3,000 bimonthly. The aforementioned salary evidence postdates the filing of the petition.8 Eligibility must be demonstrated at the time of filing the benefit request.Not eligible at the time of filing See 8 C.F.R. § 103.2(b)(l), (12). The Petitioner's RFE response also included information from Talent.com listing the "median" salary for business development managers in I Iat $90,000 and their "high" salary at $125,000.9 Even ifwe were to consider the Beneficiary's earnings from the fourth quarter of 2022 (which were received after the petition was filed), his yearly salary of $72,000 is well below the median in his occupation based on the information from Talent.com. Accordingly, the Petitioner has not demonstrated that the Beneficiary has commanded a salary that demonstrates his exceptional ability.
With regard to the Beneficiary's other remuneration for services, the Petitioner submitted a January 2020 letter from V-T-,1 Ichief executive officer (CEO), to the Beneficiary advising him that he would receive "transportation support in the United States through the lease of an automobile for up to US$1,000 per month, as well as the payment ofreal estate rent for up to US$4,000 per month." The record, however, does not show the actual amount of remuneration received by the Beneficiary for his automobile and housing expenses from January 2020 until April 2022. Regardless, to satisfy this criterion, the evidence must show that an individual has commanded remuneration for services that is indicative of their claimed exceptional ability relative to others working in the field. 10 Here, the Petitioner has not offered documentation showing that his remuneration for automotive and housing expenses demonstrates exceptional ability relative to others in the field.
In the appeal brief: the Petitioner contends that "[r]eceiving a salary or other remuneration for work performed in the position of Racing Team Manager for a leading international team that accumulated numerous European and international championships ... is evidence that the individual possesses the necessary exceptional abilities and that the evidence of remuneration is qualifying and meets the re[uiremTts at 8 C.F.R. § 204.5(k)(3)(ii)(D)." While the Beneficiary's resume indicates that he served as Racing Team Manager from October 2010 until December 2014, the Petitioner did not present evidence of the Beneficiary's salary or remuneration from that period. Nor has the Petitioner demonstrated that the Beneficiary's earnings during that period were indicative of his exceptional ability relative to other racing team managers working in the motorsports industry.
Based on the foregoing, we agree with the Director that the Petitioner has not demonstrated the Beneficiary meets this regulatory criterion.
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
We withdraw the Director's determination that the Beneficiary meets this criterion. 11 The Petitioner has not presented evidence showing that the Beneficiary holds membership in professional associations. 12 As such, the Petitioner has not established that the Beneficiary meets this criterion.
Evidence ofrecognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
example, B-L-, I I Head of R&D, indicated that the Beneficiary provided service "to our customers inl [ where together with me it was crucial having a guy like him dealing with our clients and at the same time trying to deliver the best possible solutions available at the moment." Similarly, R-E-, Manager Associate,! l stated: "I had the opportunity to work with [the Beneficiary] for more than 15 years, both we were part of a team in some technical and commercial projects and we work together in successful achievements, such as initiating the project ofrecreational carting tracks in Mexico." Likewise, L-I- ofl I asserted that he and the Beneficiary "worked on many projecy toget er and I was impressed about his leadership and his extraordinary skills." In addition, V-T-, 1 CEO, noted that the Beneficiary's team leader experience included guiding "race teams to multiple championships including World and European successes in many categories, such as 2013 KZ Category's World and European Championship and 2013 KF Category's European Championship ofl t13
The Petitioner also offered more than a dozen Certificates of Achievement presented to the Beneficiary by his employer I Ifor company projects such as "technical development," "racing team building," "development in worldwide sales," "development of new products," "promotion of our brand," and "excellence training." These certificates reflect internal recognition from the Beneficiary's employer and therefore they do not rise to the level of "achievements and significant contributions to the industry or field." For instance, the Petitioner's evidence was unaccompanied by documentation indicating that the Beneficiary's technical development work has significantly affected the motorsports rjcingl indust: or the sport of kartin:. Additionally, the Petitioner submitted articles about drivers I ~nd their racing results, but these articlesNo broader implications shown
exceptional ability classification. As the Petitioner has not established the Beneficiary's eligibility for the underlying immigrant classification, the issue ofthe national interest waiver is moot.
Conclusion
The Petitioner has not established that the Beneficiary satisfies the regulatory requirements for classification as an individual of exceptional ability. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.