The Petitioner, a physical therapist assistant, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 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 record did not establish the Petitioner's eligibility for EB-2 immigrant classification as an alien of exceptional ability or the requested national interest waiver. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(A) of the Act.
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b )(2)(A) of the Act.
Ifa petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion,3 grant a national interest waiver if the petitioner demonstrates that:
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Id.
Analysis
The Director determined the Petitioner met three categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii), but concluded the record did not establish she has a degree of expertise significantly above that ordinarily encountered in her field. 4 On appeal, the Petitioner generally disagrees with the Director's conclusions and claims that she meets all six of the evidentiary criteria, and is therefore an individual of exceptional ability. We disagree. As stated, meeting the evidentiary criteria, alone, is not sufficient to establish eligibility as an individual of exceptional ability. The evidence must also establish, in its totality, that the petitioner is recognized as having a degree of expertise significantly above that ordinarily encountered in the field. 5
Upon de novo review of the record, we agree with Director's ultimate conclusion that the Petitioner has not established she is an individual of exceptional ability. And for the reasons discussed below, we withdraw the Director's determination that the Petitioner met the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(C) and (E).
A. The Regulatory Criteria
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offitll-time experience in the occupation for which he or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B)
To satisfy the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B), a petitioner must submit "letter(s) from current or former employer(s) showing that the [petitioner] has at least ten years of full-time experience in the occupation for which he or she is being sought." On appeal, the Petitioner contends that she satisfies this criterion based on the evidence in the record, including the letters of 3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver is discretionary in nature).
recommendation, employment verification letters, and independent contractor agreements, which corroborate her experience in the occupation.
Specifically, on appeal, the Petitioner submitted the following evidence to establish her ten-years of full-time experience in the occupation:
- Letter from ________ for the I confirming the
Petitioner provided physical therapist services to thel since 2013;
- Letter from I Istating the Petitioner was an administrator and teaching assistant for the organization from 2008 to 2015;
- Letter froml Iconfirming that the Petitioner worked 40 hours per week as an intern for this company from March 2010 to July 2015;
- Letter from ___________ stating the Petitioner worked 40 hours per week beginninganuary 2021 to present, along with a copy of her independent contract agreement with
- Petitioner's independent contract agreement with I I(DBA: I I I
- Two letters from one in which the representative of _____ states she worked as a physical therapy assistant for this company from December 2022 to November 2023 on a part-time basis, and currently works on an as-needed basis, and the other which states she has worked for the company as a physical therapy assistant since January 2023;
- Letter from confirming her employment with the company on a per diem status from June 2023 to December 2023; and
- Letter from confirming she provided services as a physical therapy assistant on a contractual basis from May 2022 to December 2022.
In addition, while not discussed in her appeal brief, the record also contains a letter froml I confirming she was an unpaid trainee in physiotherapy observation from March 2010 to December 2015 for six hours per week.
After a review of the record, we identified numerous inconsistent claims and evidence relating to the Petitioner's employment history.Inconsistencies in the record Accordingly, we issued a notice ofintent to dismiss (NOID) to notify the Petitioner of this derogatory information, and inform her of our intent to dismiss the appeal. We advised her that she must resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner responded to the NOID with the submission of additional evidence, purporting to explain the inconsistencies. While the Petitioner's response addresses some of the inconsistencies outlined in our NOID, her response does not provide sufficient explanation to overcome our concerns regarding the credibility of the claims and evidence submitted.
First, in our NOID, we informed the Petitioner that the record contradicted her claims that she worked 40 hours per week withl I Specifically, we acknowledged the submission of an unsigned and undated letter from a representative of stating that the Petitioner worked 40 hours per week beginning in January 2021 and the Form 9089, Application for Permanent Employment Certification, p. 4 Appendix A, which indicated she worked as a physical therapist assistant with for 40 hours per week from February 2021 to the present. However, we explained that her contract with and her tax documents contradict these claims. Upon review, we concluded that given the hourly rate of $45-55 identified in the contract, and her total earnings for 2021 and 2022, she would have averaged less than 10 hours per week in 2021, and less than 20 hours per week in 2022.
In response to the NOID, the Petitioner submitted a newly executed letter from a representative of which states that the Petitioner's work and compensation "has been determined by patient demand and scheduling rather than a fixed work schedule . . . [ and her] working hours have not consistently aligned with those outlined in her initial contract." In addition, the Petitioner asserts in her NOID response that she "acknowledges the discrepancy between her initial contract with I I which stipulated a full-time position at $45-50 per hour for 40 hours per week, and the actual earnings reflected on her paystubs and tax records for 2021 and 2022." Yet the contract did not stipulate whether the employment was intended to be full-time or identify an anticipated number of hours the Petitioner would work. As stated in our NOID, this information was confirmed in the initial letter submitted from I Iand in the Petitioner's Form 9089, Appendix A. And rather than addressing these erroneous assertions made, the Petitioner instead incorrectly claims that the inconsistency stems from her contract executed in 2021. Accordingly, the Petitioner's statements do not resolve these inconsistencies.
In our NOID we also informed the Petitioner that the record contained inconsistent information relating to her employment with I Iincluding that the documentation provided in the initial filing identified her start date with this office as 2012, but in response to the Director's request for evidence (RFE), the documentation indicated she began the employment in 2010. In response, the Petitioner states that this discrepancy was due to inaccurate guidance provided to her from a consultancy she engaged to prepare her petition. She asserts that the consultancy told her "no experience before the 10-year span mattered. "6 Yet, while she provides proof ofher engagement with the consultancy, she does not provide evidence corroborating this claim, nor is the evidence in the record consistent with this claim. In the curriculum vitae submitted with the initial filing, the Petitioner included experience beginning in 2008, and she also submitted letters corroborating her employment beginning in 2008 with her initial filing, including a letter froml Icorroborating her employment beginning in March 2010. Accordingly, the Petitioner's explanation does not align with the evidence in the record, nor does she sufficiently address this inconsistency. Nonetheless, we acknowledge the newly issued letter froml !verifying her employment with this company did begin in March 2010. 7 Similarly, in the NOID, we advised the Petitioner that her claimed employment serving thel beginning in 2013 contradicted her claimed employment with in Brazil during that same time period. In response, the Petitioner asserts that this contradiction was the result of a typographical error in the letter provided by a councilman for the ________ 6 While the Petitioner does not clarify which ten-year span, presumably she is referring to experience occurring prior to 2012.
which was not identified by the consultancy she used to prepare her petition. In support, the Petitioner provides a new letter from the councilman confirming her start date in January 2023 not 2013, but the letter does not address any claimed typographical error in his prior letter. Notably, while the Petitioner asserts that the typographical error only occurred in the letter provided by the councilman, she does not address the fact that her appeal brief stated that this letter showed she had been working in the field since 2013.
These discrepancies, most notably the unresolved discrepancies relating to the Petitioner's claimed employment with I I cast doubt on her qualifying experience. If a petitioner fails to resolve inconsistencies after users provides an opportunity to rebut or explain, then the inconsistencies may lead users to conclude that the facts stated in the petition are not true. Matter ofHo at 591. And, given the unresolved discrepancies, the credibility of this evidence is diminished. Id. (confirming that "[d]oubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence.") Nevertheless, even ifwe were to disregard these discrepancies, the Petitioner still has not satisfied this criterion. The updated letter from does not confirm how many hours she worked, only that her work was determined "by patient demand and scheduling." Similarly, the letter from I I I Iconfirms that she worked on a "per-diem capacity" for a minimum of four hours per week, the letter from states she worked on an "as needed" basis, and the letter from states she worked 12-20 hours per week. 8 In addition, while the Petitioner has submitted a new letter from the councilman for the Ihe does not indicate the number of hours she worked, nor has she shown that the councilman is a "current or former employer( s )."9
Further, the Petitioner has not shown that her full-time exp erience with I Ias a trainee in physiotherapy observation, or her part-time experience with in the same role, constitutes expenence m the occupation sought. The letters confirming her experience as a trainee m physiotherapy observation do not provide details regarding the specific nature of the work, or otherwise explain how working as a trainee in physiotherapy observation constitutes working in the occupation of physical therapy assistant. And the letter from the representative ofl I also does not indicate whether the Petitioner worked in a full-time capacity, nor has she explained how serving as a teaching assistant and teaching capoeira classes constitutes experience in the occupation of physical therapy assistant.
For all the foregoing reasons, we conclude that the Petitioner has not demonstrated that she has at least 10 years of full-time experience in the occupation of physical therapist assistant.
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C)
The Director determined the Petitioner met this criterion due to her submission of her physical therapy assistant license from the state of Florida. The plain language of the regulation requires the Petitioner to provide "a license to practice the profession or a certification for a particular profession or occupation." 8 C.F.R. § 204.5(k)(3)(ii)(C) [emphasis added]. Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 10 8 C.F.R. § 204.5(k)(2). Here, because the Petitioner has not established that the occupation of personal therapy assistant requires the attainment of a U.S. baccalaureate degree or its foreign equivalent as the minimum requirement for entry, she has not shown that her physical therapy assistant license is a license to practice a "profession" as defined by the regulatory definition at 8 C.F.R. § 204.5(k)(2). Without more, we cannot conclude that the record establishes she satisfies the plain language of this criterion and withdraw the Director's determination to the contrary.
Evidence that the Petitioner has commanded a salary, or other remuneration for services, which demonstrate 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 their claimed exceptional ability relative to others working in the field. 11
The record contains a copy of the US. Bureau of Labor Statistics printout indicating the national average wage for physical therapy assistants is $30 per hour or $62,770 per year, along with experience letters verifying the Petitioner's hourly compensation and copies of her independent contractor agreements. Additionally, the Petitioner submitted copies of her 2021 and 2022 tax documents indicating her total earnings from 2021 and 2022 were $20,440 and $42,161, respectively.
The Petitioner asserts that, because she received an "average of $50.00 per hour worked, her compensation is "well above the market average," and she satisfies this criterion. First, the record shows that her compensation ranges from $15-$5 5 per hour, which is not representative of an average hourly rate of $50. Additionally, the Petitioner has not explained how the average salary information for the entire United States compares to her remuneration in thel IFlorida region working as an independent contractor. Moreover, given that the Petitioner's annual earnings for 2021 and 2022 were significantly lower than the mean annual earnings reported by the US. Bureau ofLabor Statistics, the Petitioner has not shown that her remuneration is indicative of exceptional ability. The Petitioner bears the burden of establishing that they meet each criterion with relevant, probative, and credible evidence. Matter of Chawathe, 25 I&N Dec. at 375-376. She has not done so here, and we thus conclude that she has not satisfied this criterion.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
The Director determined the Petitioner met this criterion due to her membership in the American Physical Therapy Association (APTA). We disagree. As stated, the regulatory definition of "profession" includes an occupation whose minimum requirement for entry is a U.S. baccalaureate degree or its foreign equivalent. 8 C.F.R. § 204.5(k)(2). To satisfy this criterion, the Petitioner submitted a copy of her certificate of membership and a printout from APTA' s website identifying licensure requirements for physical therapists and physical therapist assistants, and clarifying that APTA is not involved in the licensure process. The Petitioner did not submit evidence demonstrating that APTA requires at least a U.S. baccalaureate degree or its foreign equivalent as a minimum requirement for membership, or that it otherwise constitutes a professional association as contemplated by the regulatory definition. See 8 C.F.R. § 204.5(k)(2). As such, we do not agree that the Petitioner has established her membership in "professional associations," and we withdraw the Director's determination to the contrary.
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).
Because the Petitioner cannot satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) even if we were to conclude that she met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), we reserve our opinion regarding the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-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 will nonetheless consider the documentation submitted for this criterion in our final merits determination.
B. Final Merits Determination
Even though the Petitioner has not established that she meets three of the six evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii), we nonetheless have reviewed the record in the aggregate, and agree with the Director that the Petitioner has not shown she possesses a degree of expertise significantly above that ordinarily encountered in her field.
In reviewing the totality of the evidence in a final merits determination, we consider not only the quantity of the evidence, but also the quality (including relevance, probative value, and credibility). 12 As previously stated, the burden of proof lies with the Petitioner, and therefore her assertions must be both corroborated and credible. Accordingly, while we acknowledge the evidence pertaining to the Petitioner's experience in the field, given the unresolved discrepancies, the Petitioner has not shown this evidence to be credible. See Matter ofHo at 591 ( confirming that "[ d]oubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence.")
Additionally, while we acknowledge that the evidence demonstrates that the Petitioner has education, training, and experience as a physical therapy assistant, as well as memberships in associations supporting the physical therapy field, this evidence does not establish she possesses expertise significantly above that ordinarily encountered in the field. The evidence of the Petitioner's educational credentials, training certificates and physical therapist assistant license show that she has earned the minimum qualifications to work in her field.
On appeal the Petitioner asserts that throughout her career she has "demonstrated exceptional skills that have been consistently recognized and rewarded," and that her "unique expertise and exceptional abilities" set her apart in the field of physical therapy; however, the evidence does not support these assertions. For example, the Petitioner has not explained what specific unique experience she has that shows her expertise is sign[ficantly above others in her field. And while the record contains multiple letters of recommendation from respected individuals in her field, the letters do not indicate her experience has provided her with expertise above others in the field. One letter praises her for her expertise in "keniso taping, orthopedics, and capoeira," but the writer did not explain how this sets her apart from others in her field, nor do they elaborate on the relevance of her experience in capoeira to her duties as a physical therapist assistant. Likewise, the Petitioner states that her broad experience "solidifies [her] reputation as a high-impact" physical therapy assistant and that she has provided a broad spectrum of patient care "ranging from orthopedics and sports rehabilitation to neurological and geriatric therapy," but she has not explained how this care distinguishes her as having expertise significantly above others in the field, as it appears to be indicative of the care normally provided by physical therapy assistants.
Additionally, she also highlights her designation on the dean's list and her clinical excellence award, which were both earned while she was pursuing her associate's degree. As previously noted, the record indicates that an associate' s degree is a prerequisite to entering the physical therapy assistant field. As such, it is not apparent how these recognitions, which she received before entering the field when considered along with her education and experience would establish her expertise is significantly above those working in the field. A petitioner must support assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376.
The record as a whole does not establish the Petitioner's eligibility as an individual of exceptional ability as it does not demonstrate that she meets three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) or that she has obtained a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 13 C. National Interest Waiver
The Petitioner has not established that she is eligible for EB-2 immigrant classification. Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining issues, including whether she is eligible for a national interest waiver. See Bagamasbad at 25 ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reached").
Conclusion
The Petitioner has not demonstrated that she qualifies as an individual of exceptional ability under section 203(b )(2)(A) of the Act. Accordingly, the Petitioner has not established eligibility for the immigration benefit sought.
ORDER: The appeal is dismissed.