The Petitioner, a commercial pilot, seeks second preference immigrant classification 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. § 1153(b)(2).
The Acting Director ofthe Texas Service Center denied the petition, concluding that the Petitioner had not established his eligibility as 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.
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.
Section 203(b) ofthe Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -(A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the p. 2 sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i) National interest waiver. . . . [T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions:
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). However, meeting the minimum requirements by providing at least three types of initial evidence does not, in itself: establish that the individual in fact meets the requirements for exceptional ability. See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. In the second part of the analysis, officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination. Id. The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Id.
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States Because he has not indicated or established that he qualifies as a member of the professions holding an advanced degree, the Petitioner must meet at least three of the regulatory criteria for classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying the petition, the Director determined that although the Petitioner fulfilled four of the regulatory criteria, he did not show his degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. After reviewing the evidence in the record, we will not disturb the Director's decision relating to the license criterion under 8 C.F.R. § 204.5(k)(3)(ii)(C). However, for the reasons discussed further below, we will withdraw the Director's decision relating to the official academic criterion under 8 C.F.R. § 204.5(k)(3)(ii)(A), the ten years of foll-time experience criterion under 8 C.F.R. 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 o f exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A).
As indicated above, although the Director concluded that the Petitioner met this criterion, we will withdraw that decision. The record reflects that the Petitioner submitted a "CERTIFICATE" from hisemployer,incticatingthatthePetitioner"hasparticipated"inthreecourses. Inadctition,the Petitioner provided a "STUDIES CERTIFICATE" from the I The Director also determined that the Petitioner did not meet the salary criterion under 8 C.F.R. § 204.5(k)(3)(ii)(D) and recognition for achievements and significant contributions criterion under 8 C.F.R. § 204.5(k)(3)(ii)(F). The Petitioner does not contest the Director's determinations for these criteria on appeal. Issues or claims not addressed on appeal are deemed to be waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed waived). to waive the requirements of a job offer and thus of a labor certification.
Analysis
§ 204.5(k)(3)(ii)(B), and the membership criterion under 8 C.F.R. § 204.5(k)(3)(ii)(E).
See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. p. 4 reflecting that he "has been a student ofthe _ _ _ _ _ course of 'COMMERCIAL PILOT"' and completed various subjects. The issue for this criterion is whether an individual offered "[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 oflearning relating to the area of exceptional ability" as required by the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A).
"official academic record[s]" from the entities consistent with this regulatory criterion, nor do the certificates indicate that they constitute official academic records. Moreover, while the evidence shows that the Petitioner participated and completed courses, the documentation does not demonstrate that he received "a degree, diploma, certificate, or similar award." In addition, the Petitioner did not demonstrate that lorl Iqualify as "a college, university, school, or other institution of learning" pursuant to this regulatory criterion; he did not support the record with background information or other evidence reflecting status as a college, university, school, or other institution of learning.
For these reasons, the Petitioner did not establish that he satisfies this criterion; and therefore, we withdraw the Director's determination for this criterion.
Evidence in theform ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offitll-time experience in the occupationfor which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B).
We will withdraw this criterion for the following reason. The Petitioner submitted a letter, entitled "WORK CERTIFICATE," froml Istating that the Petitioner "serves in our company since th August 10 , 2004, as a COMMANDER A319." In addition, the Petitioner offered documentation regarding his flight hours in 2018. The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years of The Petitioner, however, did not establish that the presented certificates represent full-time experience in the occupation for which he or she is being sought."
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Director determined that the Petitioner met this criterion based on his membership with the Pilot Union ofl IBecause the record does not support the regulatory requirements, we will withdraw the Director's decision for this criterion.
The record reflects that the Petitioner submitted a letter from PilotsUnionof who stated: ___________
The Pilot Union of Ihas as its fundamental mission to defend labor rights, to maintain the security and efficiency of IPilots at the highest level that they are affiliated and seek effective solutions to the controversies that arise with the Company and the aeronautical authorities in order to improve the quality of life in a favorable work environment based on the values ofjustice, equity and fair treatment. of the
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional associations." i sis tantamotunt tao his membership in a "professional" association. The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "[p]rofession means 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 in the occupation." p. 6 we reserve these issues. considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.
The appeal will be dismissed for the above stated reasons, with each See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 l&N Dec. 516, n.7 (declining to reach alternate issues on appeal where an applicant is otherwise ineligible).