The Petitioner, a graduate student and researcher, seeks employment-based second preference (EB-2) immigrant classification as an alien 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. § 1 l 53(b )(2).
Service Center Operations (SCOPS) denied the petition, concluding that the record did not establish that the Petitioner qualifies for the requested EB-2 classification as an alien of exceptional ability. SCOPS further determined that the Petitioner did not demonstrate that a discretionary waiver of the requirement of a job offer, and thus of a labor certification, would be in the national interest. 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 ofthe evidence. Matter ofChawathe, 25 l&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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an alien 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. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 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 ofexpertise and will substantially benefit 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). p. 2 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) 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,2 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.
Analysis
The Petitioner is a graduate student pursuing a Doctor of Philosophy (Ph.D.) in software engineering atl IThe Petitioner's proposed endeavor is "to investigate the repository of software supply chains with network science-driven methods to uncover security insights and explore the associated social-technical network in order to reinforce the security of software projects." The Petitioner claims eligibility for EB-2 classification as an alien of exceptional ability in the sciences. The record includes evidence intended to establish the Petitioner's eligibility under the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (E) and (F). 3 SCOPS determined the evidence did not establish that the Petitioner meets at least three of the six evidentiary criteria under 8 C.F.R. § 204.5(k)(3)(ii) and therefore did not demonstrate eligibility for the requested immigrant classification. On appeal, the Petitioner asserts that the previously submitted evidence establishes eligibility under all three claimed criteria and demonstrates a degree of expertise significantly above that ordinarily encountered in the sciences.
For the reasons provided below, we conclude that the Petitioner does not meet the initial evidentiary requirements for classification as an individual of exceptional ability.
A. Evidence of a degree, diploma, certificate or similar award
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution ofleaming relating to the area of exceptional ability."
The record includes the Petitioner's diploma for a bachelor's degree in computer science and technology awarded byl lin 2020. The diploma was accompanied by an academic transcript and a credentials evaluation indicating the degree is equivalent to a bachelor's degree in computer science and engineering from an accredited U.S. college or university. Based on this evidence, we agree with SCOPS' conclusion that the Petitioner meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A).
B. Evidence of membership in professional associations
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional associations." The regulations define a "profession" as one of the occupations listed in section 10l(a)(32) of the Act, 8 U.S.C. § l 10l(a)(32),4 as well as any occupation that requires at least a U.S. baccalaureate degree or its foreign equivalent for entry into the occupation. 8 C.F.R. § 204.5(k)(2). The Petitioner claims eligibility based on admission as a "professional member" of the Association for Computing Machinery (ACM) and as a member of its Special Interest Group on Software Engineering (ACM SIGSOFT). We will withdraw SCOPS' determination that the Petitioner satisfied this criterion.
While the record documents the Petitioner's admission as a professional member of ACM, the evidence does not establish that ACM qualifies as a "professional association." The Petitioner submitted information regarding ACM and its membership requirements from its public website (www.acm.org). According to the section titled "Membership," persons seeking admission as professional members can satisfy the association's requirements by showing that they have "[t]wo years full-time employment in the IT field." ACM will also accept candidates with bachelor's degrees as members, but the association clearly does not require its professional members to have a degree. The evidence the Petitioner provided does not state the membership requirements for ACM SIGSOFT. Therefore, although the submitted materials from ACM include several mentions of the word "professional," the association's documented membership requirements do not show that ACM limits its membership, even at the "professional member" level, to individuals who meet the regulatory definition of "professional."5
The record does not show that ACM or ACM SIGSOFT has a membership body comprised of individuals who have earned a U.S. baccalaureate degree or a foreign equivalent degree. Therefore, the record does not demonstrate the Petitioner's memberships in these organizations qualify as "memberships in professional associations" as required by 8 C.F.R. § 204.5(k)(3)(ii)(E).
C. Reserved Issues
The Petitioner claimed eligibility under only three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)(F) and therefore must satisfy all three claimed criteria to meet the initial eligibility requirements for 4 The listed occupations are architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academics or seminaries.
classification as an alien of exceptional ability. Because we withdrew SCOPS' determination regarding the professional membership criterion, the Petitioner cannot meet three criteria and has not established eligibility for the requested EB-2 classification. We therefore reserve discussion of the third claimed criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), because our determination on that criterion, even if favorable to the Petitioner, would not change the outcome of this appeal.
Further because an individual must qualify for EB-2 classification in order to be eligible for a discretionary waiver of the job offer requirement, we decline to reach, and hereby reserve the Petitioner's appellate arguments regarding eligibility for a national interest waiver under the framework set forth in Matter ofDhanasar. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (holding that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision).
Conclusion
The Petitioner has not established eligibility for the classification sought. Accordingly, we will dismiss the appeal.
ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.5(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings under section 240 ofthe Act through the issuance of a Form 1-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.