The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the Petitioner qualifies as an individual of exceptional ability. The Director further concluded that the Petitioner had not established 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 requested benefit 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) of the Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability . -In response to the Director's request for evidence (RFE), the Petitioner submitted, in relevant part, a one-page excerpt of a Form I-140, Immigrant Petition for Alien Workers, purporting to modify his stated job title from "entrepreneur" to " transportation manager."
The Petitioner, a transportation management entrepreneur, 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).
(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 oftheir exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i) National interest waiver. . . . the 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.
For the purpose of determining eligibility under section 203(b)(2)(A) ofthe Act, "exceptional ability" is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." 8 C.F.R. § 204.5(k)(2). The regulations fmiherprovide six criteria, at least three of which must be satisfied, for an individual to establish exceptional ability:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution o f learning relating to the area o f exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation; (D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability; (E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
occupation shall not by itself be considered sufficient evidence of such exceptional ability. Section 203(b)(2)(C) of the Act. Where a petitioner meets these initial evidence requirements, we then consider the totality of the material provided in a final merits determination and assess whether the record shows sustained national or international acclaim and demonstrates that the individual is among the small percentage at the very top of the field of endeavor. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the documentation is first counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32(D.D.C. 20l3);Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be determined not by the quantity of evidence alone but by its quality," as well as the principle that we examine "each piece ofevidence for relevance, probative value, and credibility, both individually and withinthe contextofthetotalityoftheevidence,todeterminewhetherthefacttobeprovenisprobably true." MatterofChawathe, 25 I&N Dec. 369,376 (AAO 2010).
Analysis
As noted above, the Director concluded that the record did not establish that the Petitioner qualified forclassificationasanindividualofexceptionalability. Specifically,althoughthePetitionerasserted that he satisfied the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(A)-(D), the Director concluded that the Petitionersatisfiednoneofthem. ThePetitionerdoesnotassert,andtherecorddoesnotsupportthe conclusion, that he satisfies the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E)-(F), or that the standards at 8 C.F.R. § 204 .5 (k)(3 )(ii) do not readily apply to the occupation, such that comparable evidence may establisheligibility. ThePetitioneralsodoesnotassert,andtherecorddoesnotsupporttheconclusion, that the Petitioner may qualify as a member of the professions holding an advanced degree. For the reasons discussed below, the record does not establish that the Petitioner has satisfied at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii).
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record showing that the [noncitizen] has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability." The record contains a copy of a bachelor's degree in engineeringw, ith a specialty of "oil and gas works," awarded to the Beneficiary by thel [sic] Institute in 2011. The degree is bilingual, including a copy written in English. The Director acknowledged the degree; however, the Director noted that the record does not establish how the degree "relates to the area of exceptional ability in transportation management." The Director further noted that the record does not contain "any degree evaluationexplainingthelevelofeducationthe[Petitioner]possesses." Basedonthelackofevidence, the Director concluded that the Petitioner did not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A).
On appeal, the Petitioner reasserts, verbatim, his assertion in response to the Director's RFE that the "degree is relevant to the [Petitioner's] proposed endeavor. The degree has supplied the [Petitioner] with the skills and knowledge that will be instrumental in implementing the proposed endeavor." The Petitioner further reasserts, verbatim, that his coursework "is substantially equivalent to the required course work leading to the same degree from an accredited institution ofhigher learning in the United States." However,thePetitionerdoesnotsubmitanydocumentaryevidencetosupporthisassertions p. 4 onappeal. Instead,hereassertsthathesatisfiesthecriterionat8C.F.R.§204.5(k)(3)(ii)(A)"[b]ased on the documentation in the record." The Petitioner generally described the proposed endeavor as "seek[ing] employment in the field of trucking industry [sic], eventually owning and operating his own trucking company, which will be engagedininterstatetransportation."Proposed endeavor too vague Aspreviouslynoted,hepurp01iedtochangehisjobtitlefrom "entrepreneur"to"transportationmanager"inresponsetotheDirector'sRFE. However,thePetitioner did not specify what "transportation management" ability he seeks to be recognized as exceptionai such as loading and unloading a truck, driving a truck, owning and operating a trucking company, or anyotherability. Becauseoftheseambiguities,therecorddoesnotestablishthatabachelor'sdegree in engineering, with a specialty in "oil and gas works," relates to a specific area of exceptional ability. Petitioners bear the burden to establish eligibility for the requested benefit. Section 291 of the Act. Even if the Petitioner's own asse1iions regarding the equivalency of his degree were sufficient to establish the nature of his foreign degree, which they are not, coursework "supplied [him] with the skills and knowledge that will be instrumental in implementing the proposed endeavor" ofgenerally working "in the field of trucking industry [sic]" and "eventually owning and operating his own trucking company" does not provide sufficient information regarding the skills and knowledge he gained while earning a his degree, or how that relates to a specified area of exceptional ability. Because the record does not establish how the Petitioner's foreign degree in engineering relates to the area of exceptional ability, or even what the area of exceptional ability is, the Petitioner has not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). See section 291 of the Act.
Next, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from current or fonner employer(s) showing that the [noncitizen] has at least ten years of full-time experience in the occupation for which he or she is being sought." The record contains letters from former employers of the Petitioner, stating his dates of employment and job titles. However, the Director noted that the letters do not describe the duties the Petitioner performed for his employers. The Director further noted that the record does not establish how the Petitioner's prior employment constitutes experience in the occupation for which he seeks. The Director concluded that, because the record does not establish that the Petitioner's prior employment experience is in the occupation he seeks, the record did not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B).
On appeal, the Petitioner reasserts his assertion in response to the Director's RFE that he "has the requisite 10 years of experience in the occupation that is directly relevant to his proposed endeavor." ThePetitionerdoesnotsubmitanydocumentaryevidencetosupporthisasse1iionsonappeal. Instead, he reasse1is that he satisfies the criterion at 8C.F.R. §204.5(k)(3)(ii)(B) "[b]ased on the documentation in the record."
As discussed above, the Petitioner does not articulate the specific nature of the "employment in the field o f trucking industry [sic]" he seeks, other than "eventually owning and operating his own trucking company." However, in response to the Director's RFE, the Petitioner submitted, in relevant part, a See 6 USCIS Policy Manual E.9, https://www.uscis.gov/policymanual (referring to "a credentials evaluation performed by an independent credentials evaluator who has provided a credible, logical, and well-documented case for such an equivalency determination that is based solely on the noncitizen's foreign degree(s)"). p. 5 one-page excerpt of a Form 1-140 purporting to modify his stated job title from "entrepreneur" to "transportation manager," whose duties entail "overseeing the logistics of the company's transportation-related activities." Although the record contains letters from two former employers, as the Director observed, none of the letters establish that the Petitioner has at least 10 years offull-time experience in the occupation of"transportation manager."
First, a letter from the piping department manager of indicates that the Petitioner worked as a "piping engineer" from April 2014 to May 2015; however, it does not elaborate on the duties the Petitioner performed during that 14-month period, whether the Petitioner w01ked on a full-time basis, and how the occupation of a "piping engineer" is in the occu ation of a "transportation manager." Next, an undated, one-sentence letter from the director of states that the Petitioner "has been working at the _ _ _ _ _ _ _ _ _Air Base _ through! !company as a [t]rusted [a]gent since January 2004 till present."Theletteromits any indication of how long the Petitioner worked forl I I p. 6 at 249; Matter ofIzummi, 22 I&N Dec. at 176. Moreover, even if the record established that the Petitioner had been issued a CDL as of the petition filing date, which it does not, it does not establish thataCDLis requiredtopracticetheprofessionof"transportationmanager." Becausetherecorddoes not establish that the Petitioner had a license to practice, or a certification for, the profession of "transportation manager," it does not satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C).
Next, the regulation at 8C.F.R. §204.5(k)(3)(ii)(D) requires "[e]vidence that the alien has c o m m a n d e d a s a l a r y , o r o t h e r r e n u m e r a t i o n [sic] f o r s e r v i c e s , w h i c h d e m o n s t r a t e s e x c e p t i o n a l a b i l i t y . " In the RFE, the Director advised the Petitioner that the record did not establish that he "commands a salaryorotherremunerationforserviceswhichdemonstratesexceptionalability." Theextentofthe Petitioner's response to the RFE regarding this criterion was "[b]ased on the documentationpreviously submitted and/or attached hereto, the [Petitioner] clearly established that this criterion has been met," withoutidentifyinganyparticulardocumentationrelevanttotheissue. TheDirectorconcludedthat, without evidence, the Petitioner had not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D).
On appeal, the extent of the Petitioner's assertions regarding the regulation at 8C.F.R. § 204.5(k)(3)(ii)(D) is: "Based on the documentation in the record, the [Petitioner] clearly established that this criterion has been met, and USCIS erred in finding otherwise," again not identifying any particular documentation relevant to the issue.
On the Form I-140, the Petitioner omitted the wages for the proposed employment. However, in the one-page excerpt of a Form I-140 submitted in response to the Director's RFE, purporting to modify the Petitioner's stated job title from "entrepreneur" to "transportation manager," the Petitioner asserted In summation, the record does not satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, the record does not establish that the Petitioner qualifies for second-preference classification as an individual of extraordinary ability. See section 203(b)(2)(A) of the Act. We reserve our opinion regarding whether the Petitioner satisfies any of the criteria set forth in the precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). 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 alsoMatterofL-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).
We note that the Petitioner also submitted a copy of his 2020 IRS Form 1040, U.S. Individual Income Tax Return, in response to the RFE, indicatingthathis total incomewas $9,552.
Conclusion
The record does not establish that the Petitioner qualifies for second-preference classification as an individual of extraordinary ability; therefore, we conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.