The Petitioner, a technician, seeks employment-based second preference (EB-2) immigrant classification as either a member of the professions holding an advanced degree or 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).
Service Center Operations (SCOPS) denied the petition, concluding that the record did not establish that the Petitioner qualifies for the EB-2 classification and, therefore, did not establish that he is eligible or otherwise merits a national interest waiver. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christa'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.
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent of a master's degree. Id.
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 p. 2 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 ofitself: establish eligibility for this classification. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 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 ofexpertise 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.
If a 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) ofthe Act. Matter ofDhanasar, 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 (USCTS) may, as matter of discretion,2 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.
Eb-2 Classification
In order to qualify for a national interest waiver, the Petitioner must first show that he qualifies for the EB-2 classification under section 203(b )(2)(A) of the Act, either as an advanced degree professional or an individual of exceptional ability. In denying the petition, SCOPS included an unclear statement that since "representations have been made that the petitioner has exceptional ability, consideration of this petition will be limited to the issue of whether the petitioner is a member of a profession holding an advanced degree." In addressing whether the Petitioner qualified as an advanced degree professional, SCOPS cited 8 C.F.R. § 103 .2(b )(8)(i), which states in pertinent part, "If the record evidence establishes ineligibility, the benefit request will be denied on that basis."3 SCOPS also stated that the Petitioner did not submit any educational documentation, concluding that the Petitioner had not established that he is a member of the professions holding an advanced degree.
On appeal, the Petitioner asserts that SCOPS erroneously evaluated his petition as a request for consideration of his EB-2 eligibility as an advanced degree professional. He states that his "cover letter and accompanying documentation explicitly stated his request for consideration under the 'exceptional ability' classification."
In his cover letter, the Petitioner stated that he qualifies as an individual of exceptional ability because he has satisfied all six of the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). He explained that he has a foreign associate' s degree in mechanics and thirteen years of experience in industrial equipment inspection. He highlighted employment verification letters, his mechanical technician license, his employment registration card, technical certifications, documentation related to his salary, and letters of recommendation describing his employment experience.
The record, however, does not contain the evidence the Petitioner references in his cover letter. In reviewing the record, we find an Application for Permanent Employment Certification (U.S.
Department of Labor Form ET A-9089), his marriage certificate, and identity documentation and admission records for himself and family members.
The petition must be accompanied by initial evidence showing that Petitioner is an individual of exceptional ability. 8 C.F.R. § 204.5(k)(3). Here, initial required evidence to demonstrate the Petitioner's eligibility for the EB-2 classification is not present in the record. 4 If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence. 8 C.F .R. § 103 .2(b )(8)(ii). The evidence of record does not demonstrate that the Petitioner qualifies for the EB-2 classification as an individual of exceptional ability.
National Interest Waiver
As discussed above, the Petitioner has not presented sufficient evidence to establish his eligibility for the EB-2 classification. Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the issue of whether he merits a discretionary waiver of the job offer requirement "in the national interest" under the Dhanasar framework. 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 ofL-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).
Conclusion
The Petitioner has not established qualification for the EB-2 visa classification, an underlying requirement to establish eligibility for a national interest waiver. The petition will remain denied. ORDER: The appeal is dismissed.
NOTICE: This constitutes the final decision in this matter. The filing of a motion will not postpone the effect of the decision. 8 C.F.R. § 103.5(a)(l)(iv). Aliens who are not lawfully present, or who are otherwise inadmissible or deportable, may be subject to the commencement of removal proceedings 4 We note that, on appeal, the Petitioner submits additional documentation, including information about industrial rope and scaffolding, an oil and gas company, a petrochemical company, and an executive order concerning domestic energy. This evidence does not pertain to the Petitioner's claimed exceptional ability and, therefore, does not overcome the basis for denial. p. 4 under section 240 ofthe Act through the issuance of a Form I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.