The Petitioner, a journeyman power lineman, 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 Director of the Nebraska 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 ofthe labor certification, would be in the national interest.
On appeal, the Petitioner asserts that he is eligible for exceptional ability classification and for a national interest waiver. 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 novo 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 p. 2 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 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)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney 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).
Furthermore, while neither the statute nor the pertinent regulations define the term "national interes~" we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , 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 impmiance, 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.
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 Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperf01ming 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 offerorforthepetitionerto 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 wan-ant 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 the Petitioner did not fulfill any ofthe regulatory criteria. On appeaL the Petitionermaintainsthathesatisfiesfivecriteria. Afterreviewingtheevidence,weconcludethatthe record does not support a finding of his eligibility for 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 o f learning relatingtotheareaofexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(A).
The Director determined:
Theplainlanguageofthiscriterionhasbeenmet However,whiletheevidencemayshow the petitioner is a capable Journeyman Line Worker in Canada, the certificates/transc1ipts do not demonstrate the petitioner has a degree of expertise significantly above that ordinarily encountered in his field.
As such, this criterion has not been met.
The issue for this criterion is whether an individual provided"[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. SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual. to waive the requirements of a job offer and thus of a labor certification.
Analysis
The issue of whether an indvidual has achieved the required level of expertise § 204.5(k)(3)(ii)(A). required for the exceptional ability classification, however, is conducted in a final merits determination if p. 4 The record reflects that the Petitioner claimed eligibility based on:
- A "Journeyman Certificate" stating that he "has completed ad IApprenticeship P r o ~ and having achieved the standards established under the I 7 .___ _ _ _ .....,l is hereby auth01ized to w01k in the trades as a journeyman to use the title certified journeym an',....'-----------,
- A card from.___ _ _ _ _ _ _ _ _ __.certifying that the Petitioner successfully completed "Advanced Boom Truck Safety"
- A "Statement of Recognition" froml ICollege of Applied A1is and Technology reflecting that the Petitioner successfully completed the "Excavator/Backhoe Operator Course"
- A "Ce1iificate of Completion" from lce1iifying that the Petitioner the individual satisfies at least three criteria.
Petitioner's evidence complies with the plain language of this regulatory criterion. completed "Basic Chainsaw Safety & Maintenance"
We will review the record to determine whether the
,-----------,
- A "Certificate of Achievement" f r o m ~ - - - - - - - - - College recognizing the Petitioner's participation and training on "Excavator & Backhoe/Loader"
- A "Certificate of Achievement" from.___ _ _ _ _ _ _ _ _ _ _ ___. for "Live Line Techniques (25 kV and Below)" The Petitioner also submitted a "Lesson Outline" for the National Electrical Course for Apprentice Linemen and "Live Line Trainee" learning guides for levels 1 and 2.
As indicated above, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic Without evidence ofofficial academic records from a college, university, school, or other institution of learning, the Petitioner has not sufficiently shown that he meets this criterion.
A license to practice the profession or cert[fication for a particular profession or occupation. 8 C.F.R. § 204.5(kX3)(ii)(C). The Director referenced several of the documents discussed above and concluded that "there is no evidence the profession itself requires them," and "the evidence does not demonstrate the Journeyman license demonstrates a degree of expertise significantly above that ordinarily encounter[ed] in his field."Argued the field's importance, not the endeavor's The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C), however, only requires "[a] license to practice the ThePetitioner,however, did not establish that the presenteddoumentation, such as a certificate, record. " represents "official academic record[s]" consistent with this regulatory c1iterion. Here, the Petitioner did notshowthatheprovidedofficialacademicrecordsfromtheorganizations. Inaddition,thePetitioner did not demonstrate that the entities qualify 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 their status as a college, university, school, or other institution o f learning.
Id.
Sec also 6 USCIS Policy Manual,supra, atF.5(B)(2).
I profession or certification for a particular profession or occupation" rather than "evidence the profession itselfrequires them." Here, the Petitioner's submission of his "Journeyman Certificate," showing his authorization to work in the trades as a journeyman, meets the plain language of this regulation. Moreover, the significance of his licenses or ce1iificates is analyzed in a final merits Accordingly, the Petitioner established that he meets this criterion.
Evidence that the alien has commanded a salary, or other remuneration for services, whichdemonstratesexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(D).
At initial filing, the Petitioner provided copies of his paystubs from I Ilocated in ~I_ _ __. Canada; salary information for line installers and repairers in the United States from bls.gov, glassdoor.com, indeed.com, chron.com, payscale.com, and salary.com; and job postings of various journeyman positions in the United States from indeed.com. The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D)requires "[e]vidence that the alien has commanded a salary, orotherremuneration In response to the Director's request for evidence (RFE), the Petitioner submitted a job letter from Iconfirming his salary and employment as a "Journeyman Power Linemen"; copies of additional paystubs from Ia salary survey for several powerline technician positions in Canada from redsealrecruiting.com, and a screenshot reflecting the average powerline technician salary in Canada from payscale.com. Again, the comparative evidence indicates the average salaries for powerline technicians rather than the salary range for journeyman power linemen, the Petitioner's specific occupation.
On appeal, the Petitioner offers additional screenshots from payscale.com. However, as the Petitioner did not submit these documents before the Director, either at the time he filed the petition or in response to the Director's RFE, we will not consider this evidence in our adjudication of this appeal SeeMatterofSoriano, 19 I&NDec. 764, 766(BIA 1988) (providingthatif"ifthepetitionerwasput on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial, we will not consider evidence submitted on appeal for any purpose" and that "we will adjudicate the appeal based on the record of proceedings" before the Chief); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988).Evidence submitted too late
For the reasons discussed above, the Petitioner did not show that he commanded a salary reflective of exceptional ability. g Sec 6 USCJS PolicyManual,supra, atF.5(B)(2). determination ifthe individual satisfies at least three criteria. for services, which demonstrates exceptional ability." journeyman positions in the United States rather than to the salaries of other journeyman power linemen in the I ICanada area.Exceptional ability not established Thus, the Petitioner did not show that he commanded a salaiy commensurate with exceptional ability.
See also 6 USCIS Policy Manual,supra, atF.5(B)(2).
Sec also 6 USCJS Policy Manual,supra, atF.5(B)(2).
The Petitioner compared his salary to non-
Evidenceo.fmembershipinprofessionalassociations. 8C.F.R.§204.5(kX3)(ii)(E).
The Petitioner contends that his membership with the International Brotherhood ofElectrical Workers (IBEW) meets this criterion. Specifically, the Petitioner argues that "[b]y definition, the IBEW is a professional labor association. It was established in 1891 and represents some 1 million electrical professionals. The IBEW states that it is a professional labor association." As evidence, the Petitioner submitted a confirmation letter of his membership from IBEW and screenshots from various websites describing ibew.org, for example, as "represent[ing] approximately 750,000 active members and retirees who work in a wide variety of fields, including utilities, construction, telecommunications, broadcasting, manufacturing, railroads and government," "anon-profit labor organization," and "[t]he IBEW exists solely to represent the interests of workers in the electrical industry."
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e]vidence of membership in professional associations."
However, the evidence submitted by the Petitioner does not show that IBEW has a membership body comprised ofindividuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization otherwise constitutes a professional association consistent with Accordingly, the Petitioner did not demonstrate that he fulfills this criterion.
Conclusion
The Petitioner established eligibility for only one criterion discussed above. Although the Petitioner claims eligibility for an additional criterion on appeal,relatingto recognition for achievements at 8 C.F.R § 204.5(k)(3)(ii)(F), we need not reach this additional claim as he cannot fulfill the initial evidentiaiy requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii). Moreover, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of expertise requiredforexceptionalabilityclassification. Inaddition,weneednotreachadecisiononwhether, as a matter of discretion, he is eligible for or otherwise merits a national interest waiver under the this regulatory criterion.
Dhanasaranalyticalframework. Accordingly,wereservetheseissues. for the above stated reasons, with each considered as an independent and alternate basis for the decision. ORDER: The appeal is dismissed.
See also 6 USCISPolicyManual,supra,atF.5(B).
The regulation at8 C.F.R. § 204.5(k)(2) contains the following relevant definition:
"Profession means one of the occupations listed in section IO l(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."
SeeINSv. Bagamasbad,429U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required to make findings and decisions unnecessaiy to the results they reach); see also Matter o/L-A-C-, 26 I&N Dec. 516, n.7 (declining to reach alternate issues on appeal where an applicant is otherwise ineligible).
Theappealwillbedismissed