The Petitioner seeks second preference immigrant classification as an individual o f 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 Director of the Texas Service Center denied the petition, concluding that the Petitioner did not qualify for classification as an individual of exceptional ability, nor had he established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
On appeal, the Petitioner asserts that he meets the requirements of the requested classification. 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) of the 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 p. 2 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. . . . [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 definition:
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). If a petitioner satisfies these initial requirements, we then consider the entire record to determine whether the individual has a degree of expertise significantly above that ordinarily encountered. See Matter ofChawathe, 25 I&N Dec. at 376 (holding that the "truth is to be determined not by the quantity of evidence alone but by its quality"). See also Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted and then, if it satisfies the required number of criteria, considered in the context of a final merits determination).
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. See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs.
In announcing this new framework, we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
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 discretionmy in nature).
Dhanasar states that after a petitioner has
A. Individual ofExceptional Ability
Analysis
In denying the petition, the Director determined that the Petitioner had not met any of the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) and, therefore, had not established that he was an individual o f Upon review, the Petitioner's diploma and transcript meet the plain language of this criterion, and, therefore, we withdraw the Director's conclusion. However, we note that section 203(b)(2)(C) of the Act provides that the possession of a degree, diploma, certificate or similar award from a college, university, school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability.
Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) To satisfy this criterion, the evidence must show that an individual has commanded a salary or remuneration for services that is indicative of his claimed exceptional ability relative to others in his field, which, according to the information in the record, is as a general and operations professional. See 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f- chapter-5.
The record contains salary information for the occupation of "administration manager" in Brazil from Salario BR at http://www.salariobr.com for the period from March 17, 2019 until March 18, 2020, and exceptional ability. On appeal, the Petitioner asserts that he meets the three criteria addressed below. 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 ofexceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A). the Petitioner's calendar year 2017 "Income Tax-Individual Annual Adjustment Return." to the Petitioner's resume, he was employed as a sales director from January 201 7 until December 2017 and the tax document confirms that employment as the source of his taxable income.
Here, the Petitioner has not established how his earnings as a sales manager are indicative of exceptional ability relative to others in the field of general and operations professionals. additional evidence, the Petitioner has not established that he meets this criterion.Exceptional ability not established
Without
As the Petitioner does not address the remaining criteria, we consider them abandoned. See Matter ofR-A-M-. 25 I&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att 'v Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344(11thCir.1998);Hristovv. Roark, No.09-CV-27312011,2011 WL4711885at*L *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO).
The Petitioner did not explain why he relied on his 2017 salary and submitted general salary information for a different time period. It is also unclear whether general and operations managers and administration managers are sufficiently similar occupations for comparison purposes.
According
We note that the record indicates that the Petitioner was also the CEO and a founding member of another company during the time he was employed as a sales manager. The Petitioner should address this in any future filings, as we question how he was able to perform both roles as described. A petitioner must resolve this inconsistency with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Evidence ofrecognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
The Petitioner provided multiple letters of support as evidence. While the letters are complimentary of the Petitioner and establish that he was a valuable, successful, and experienced employee, the documentation does not sufficiently establish that the Petitioner's work has had an impact beyond his employers, clientele, and their projects at a level indicative of achievements and significant contributions to the industry or field.No broader implications shown
Further, since we have concluded that he does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), he cannot meet the requisite three evidentiary criteria to establish that he satisfies the initial evidentiary requirement for this classification For the reasons set forth above, the evidence does not establish that the Petitioner satisfies at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability classification. As the Petitioner has not met the threshold requirement for this classification, further analysis of his eligibility for a national interest waiver would serve no meaningful purpose.
Conclusion
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.