The Petitioner seeks second preference immigrant classification as a member of the professions holding an advanced degree and 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 Texas Service Center denied the petition, concluding that the Petitioner had not established eligibility for EB-2 classification and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
O n a p p e a l , t h e P e t i t i o n e r a s s e r t s t h a t h e is e l i g i b l e a s i n d i v i d u a l o f e x c e p t i o n a l a b i l i t y a n d f o r a n a t i o n a l 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:
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years ofprogressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
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 to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner present "[a]n official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty."
To demonstrate eligibility as an individual of exceptional ability, a pet1t10ner 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 interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f 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 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 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 imp01iance, we consider its potential prospective impact.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming 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 As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an exceptional ability individual.
A. Member of the Professions Holding an Advanced Degree
In order to show that an individual holds an advanced degree, the petition must be accompanied by "[a]n official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present "[a]n official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form ofletters from cun-entorformeremployer(s) showing that the alien has at least five years ofprogressivepost-baccalaureate experience in the specialty." 8 C.F.R § 204.5(k)(3)(i)(B). to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
At initial filing, the Petitioner claimed that he possessed a foreign equivalent of a United States baccalaureate degree, along with five years of progressive post-baccalaureate experience in the specialty. The Director indicated in the request for evidence (RFE) that the presented evidence did notdemonstratethePetitioner'spossessionofanadvanceddegree. Inresponse,thePetitionerdidnot address the Director's findings or submit additional evidence regarding this issue. In the decision denying the petition, the Director repeated his conclusions and determined that the Petitioner did not qualify as a member ofprofessions holding an advanced degree.
Onappeal,thePetitionerdoesnotcontesttheDirector'sdecisionconcerningthismatter. Therefore, we deem this issue to be waived. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009); th see also Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9 brief are deemed waived).
B. Exceptional Ability
Cir. 2011 )(finding that issues not raised in a
Because he has not established that he qualifies as a member of the professions holding an advanced degree, the Petitioner must first 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 DirectordeterminedthePetitionerfulfilledthefollowingthreeregulatorycriteria: officialacademic recordat8C.F.R. §204.5(k)(3)(ii)(A),tenyearsoffull-timeexperienceat8C.F.R.§204.5(k)(3)(ii)(B), and membership in professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E). Despite satisfying three criteria, the Director concluded that the Petitioner did not demonstrate that he possessed a degree of expertise significantly above that ordinarily encountered.
After reviewing the record, we agree with the Director's decision relating to 8 C.F.R § 204.5(k)(3)(ii)(A) and (B). However, for the reasons discussed below, we do not concur with the Director regarding 8 C.F.R. § 204.5(k)(3)(ii)(E), and the record does not show that the Petitionermeets any additional regulatory criteria.
A license to practice the profession or cert[fication for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). The Petitioner did not claim eligibility for this criterion at either initial filing or in response to the Director'sRFE. Accordingly,thePetitionerdidnotdemonstratethathesatisfiesthiscriterion.
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 asserted the submission o f a "[l]etter from Employer demonstrating [his] high salary (see Expert evaluation of salary in Exhibit below)." The Petitioner, however, did not identify the "Expert evaluation of salary" to which he referenced, nor is it shown in the "Exhibit below." Therecorddoescontainaletterfro~ Ipresidentofl I who indicated that the Petitioner "has been working with I" Jas our Software Engineering Specialist" and "[t]orhis excellent work, he is being compensated $65]000.00 per year." In addition, the record includes two letters froni~-----.....------~--...,.....that discussed his roles and employmentbutmakenomentionofhissalary. ThePetitioneralsoprovidedaletterfrom[ I p. 5 ~ - - - l a d j u n c t p r o f e s s o r a t t h e U n i v e r s i t y o ~ ~ - - ~ ~ ' w h o r e f e r e n c e d Is l e t t e r a n d o p i n e d that "it makes sense to me that [the Petitioner] would be well-compensated for his exceptional services," and "[t]he trust that the company has put in [the Petitioner] is evident based on the remuneration he has been awarded for his exceptional service."
In response to the Director's RFE, the Petitioner did not further claim eligibility for this criterion. However, as evidenceofhis employment, he submittedcopies ofhis paystubs frame=] and income tax documentation froml I The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(D) requires "[e]vidence that the alien has commanded a 188942 at *5 (S.D.N.Y.). In addition, the Petitioner did not provide, for example, comparative occupational salary information showing that his salary rises to the level of exceptional ability.
For the reasons discussed above, the Petitioner did not establish that he commanded a salaiy commensurate with exceptional ability. Evidenceofmembershipinprofessionalassociations. 8C.F.R.§204.5(kX3)(ii)(E).
The Director determined that the Petitioner met this criterion based on his membership with Agile Alliance. Because the record does not support the regulatory requirements, we will withdraw the Director's decision for this criterion.
At initial filing, the Petitioner did not claim eligibility for this criterion. In response to the Director's RFE, the Petitioner indicated his membership and stated that "Agile Alliance is a global nonprofit member organization dedicated to promoting the concepts of Agile Software Development." The Petitioner also submitted photographs depicting attendance at an Agile Alliance event and screenshots from agilealliance.org showing his membership status and background information about the organization. Specifically, Agile Alliance describes itself as "a nonprofit member organization dedicated to promoting the concepts of Agile Software Development as outlined in the Agile Manifesto." Moreover, "Agile is a mindset informed by the values contained in the Agile Manifesto and the 12 Principles behind the Agile Manifesto" and "[t]he Agile Manifesto and the 12 Principles were written by a group of software developers (and a tester)to address issues that software developers faced."
Theregulationat8C.F.R. §204.5(k)(3)(ii)(E)requires"[e]videnceofmembershipinprofessional Sec also 6 USCJS Policy Manual,supra, atF.5(B)(2). Sec also 6 USCJS Policy Manual, supra, at F.5 (B)(2). salary, or other remuneration for services, which demonstrates exce tional ability." record contains evidence that he earned salaries from.___----1-'"~~---,.____. the Petitioner did not demonstrate the significance o f such salaries. Moreover, whil _.___ _ _ _.offered his opinion, he did not elaborate and sufficiently explain how the Petitioner's salary reflects exceptional ability besides repeating the language of the regulation. Repeating the language ofthe statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL associations." principles, the Petitioner did not explain how this evidence demonstrates the professional status ofthe Although the screenshots indicate that Agile Alliance promotes its software and Although the p. 6 organization. ThedocumentationdoesnotshowthatAgileAlliancehasamembershipbodycomprised of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the Because the Petitioner did not sufficiently establish that Agile Alliance qualifies as a professional association, we withdraw the Director's determination for this criterion.
Evidence ofrecognitionfor achievements and significant contributions to the indust,y or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
On appeal, the Petitioner's briefrepeats his response to the Director's RFE and argues that his evidence "satisfied the applicable burden of proof, demonstrating by a preponderance of the evidence that [he] achieved such recognition and rendered vital contributions in his field." The record reflects that the organization otherwise constitutes a professional association consistent with this regulatory criterion. Petitioner rovided a letter fro ______________ project manager at _. and an article from sun-sentinel.com, which indicate that I romotional material for and I
" w a s o n e o f t h e 5 0 B r a z i l i a n c o m p a n i e s c h o s e n o u t o f a t o t a l o f 2 , 4 0 9 a p p l i c a n t s . . . f o r . _ _ _ _ _ __, 'business accelerator' program" that "assist[s] the 50 Brazilian companies to launch U.S. operations, creatingjobs in Florida and strengthening ties with the state's largest trade partner."
According to~I- - ~
Since I Iwas chosen to participate of this program, [the Petitioner] was working diligently in order for the technology to pass all qualifications phases, and after showing his potential and commitment, the multi-billion dollar U.S. company j Ientered in collaboration with L Jand its technology as a potential solution to help the U.S. market in automating businesses' sales processes, no matter their locations . . . .
[The Petitioner's] technology was considered b~ las a strongly viable tool for bringing technology and services to remote parts of the U.S., even where no internet connection existed. Using [the Petitioner's] expertise in combination with the best technologies available, him and his team created a solution that continues to facilitate the ease and efficiency ofbusiness operationsby helping to store all information into a local database even in small devices. This bringing security, high performance, and intelligence,allatthe hands o fmany companies' managers and employees who need work remotely.
In addition, the Petitioner submitted a letter fro ormer employee oti Iwho furthered described the Petitioner's,___ _ _ _.' as a "CRM [customer relationship management] platform that essentially speeds up and opens new doors to salefpeop;e inlyny company using it."
Furthermore, the Petitioner provided background information about ~thd luser manual, and a reseller agreement between
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 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 minirnumrequirementforentry in the occupation."
L...---~~~~-~---_.,
"Profession means one of the
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires "[e]vidence ofrecognition for achievements and significant contributions to the industty or field b y p e e r ~ m e n t a l entities or professional orbusiness organizations." 1 IletterandarticleshowsthaL_JwasselectedforI than recognition ofthe Petitioner's achievements and significantcontributions. letters from I land Icredit the Petitioner for developing! elaborate and sufficiently explain ho"1 Iqualifies as a "significant contribution[] to the industty or field." Again, this regulatory criterion not only requires the Petitioner to demonstrate contributions to the industry or field but that those contributions be "significant." Here, the Petitioner did not establish the impact ofi Ito the field rather than limited trl I Furthermore, whild I indicated thatl I"evidently continues to be used," she did not articulate the influence of I Ito the field or industry to be considered a significant contribution.8 The Petitioner also referenced the letter froml Idiscussed above, who opined that the Petitioner meets the criteria relating to official academic record at 8 C.F.R. § 204.5(k)(3)(ii)(A), ten years offull- time experience at 8 C.F.R. § 204.5(k)(3)(ii)(B), and membership in professional associations at 8 C.F.R §204.5(k)(3)(ii)(E)j Ihowever,doesnotofferanopinionrelatingtothiscriterion. Regardless, while he summarized documentation presented to him by the Petitioner] ldoes not explain how the Petitioner has received recognition for his achievements and made significant contributions to the field or industry rather than repeating the Petitioner's employment history. I ldoes not demonstrate that the Petitioner's work resulted in recognition for achievements and significant contributions.
Similarly, the Petitionerprovided a letter froni Icomputer engineer at~I- - - ~ who indicated that he worked with the Petitioner for two years and described the duties performed, such as "he planned the software architecture and all the workf1ow ofthe sales web portal" and it "was ofhuge value because it made the company increase their business as well distribute and make mobile the sales process, improving its revenue." Moreover, the Petitionerreferenced the previously discussed letter fmm I r7ho stated that"[s]ince his staii with our finnl I, he has already helped bolster the creat1v1ty and technical tact of our IT management team, which in tum has divulged his advice to supporting IT staff." Furthermore, the Petitioner submitted a letter froml Iwho indicated that the Petitioner was "a professor atth~ Ion a part time basis" and"[a]lthough he worked as a software engineer fo~ lhe still made his time available to teach and share with youth who dreamed ofentering the computer science profession."
While the letters praise the Petitioner for his professional abilities, they do not indicate how he has been recognized for his achievements, nor do they explain how his contributions rise to the level of "significant"consistentwiththisregulation. Theletters,forinstance,donotshowhowhiscontributions have somehow impacted or influenced the field or industry in a significant manner beyond his employers. Without detailed, probative information, the letters do not sufficiently demonstrate his recognition for achievements and significant contributions to the industry or field.Support letters generic or unsupported
For the reasons discussed above, the Petitioner did not establish that he satisfies the criterion. See also 6 USCIS Policy Manual,supra, atF.5(B)(2). ~ R While the record also contains some customer reviews 011....._ _ __.lfrom._l_ _ _,l'swebsite, they do not reflect significant contributions to the field orindustty.
Isprogramrather Moreover, although the
Ithey do not further
Conclusion
The Petitioner has not established that he meets at least three of the criteria. As a result, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of the Dhanasar analytical framework. Accordingly, we reserve these issues. dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. ORDER: The appeal is dismissed. expertise required for exceptional ability classification. whether,asamatterofdiscretion,heiseligible fororotherwisemeritsanationalinterestwaiverunder 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).
See6 USCISPolicyManual,supra,atF.5(8)(2).
In addition, we need not reach a decision on
The appeal will be