The Petitioner seeks second preference immigrant classification as an individual ofexceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. 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 the Petitioner had not established eligibility for the underlying immigrant classification. 1 The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bear the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter oJChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To establish eligibility for a national interest waiver, petitioners must 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.
determination. Id. The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Id.
Analysis
As indicated above, 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). The Director determined the Petitioner's qualification for only one criterion - 8 C.F.R. § 204.5(k)(3)(ii)(E) (membership in professional associations). On appeal, the Petitioner argues she satisfies three additional criteria. 3
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).
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B) requires "[e]vidence in the form ofletter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought."4 Further, the regulation at 8 C.F.R. § 204.5(g)(l) provides that evidence relating to qualifying experience or training shall be in the form of letters from current or former employers or trainers and shall include a specific description ofthe duties performed by the individual or of the training received. The Petitioner argues:
[He] has the requisite 10 years of experience in the occupation that is directly relevant to his proposed endeavor. From 2013 to 2017, [the Petitioner] worked as a confectionery maker at I IRussia ....
Additionally, from 2016 to 2017, [the Petitioner] worked as a confectionery maker on a consulting basis at the artisan confectionaryl IRussia.
Since June 2019, [the Petitioner] has been self-employed as a confectionary artisan in the United States.
Based on these statements, the Petitioner does not possess the required ten years of full-time experience. The Petitioner filed the petition in 2020. Eligibility must be established at the time of filing. See 8 C.F.R. §103.2(b)(l). The Petitioner's appellate claims cover approximately four-to-five years (2016 - 2020), short of the required ten years of full-time experience.
Furthermore, although the Petitioner provided employment letters from _________ neither letter indicates that the Petitioner has at least ten years of "full-time experience" as required by the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). Moreover, the record does not contain evidence in the form of employment letters for his self-employment claim.
Finally, the Petitioner previously filed a first preference immigrant employment pet1t1on seeking classification as an individual ofextraordinary ability under section 203(b )( 1 )(A) ofthe Act. The Director of the Nebraska Service denied the petition, and we subsequently dismissed the appeal. In our decision discussing the Petitioner's eligibility claim under the leading or critical criterion for the regulation at 8 C.F.R. § 204.5(h)(3)(viii), we stated:
... [W]e note that the Petitioner indicated on his concurrently filed Form 1-485, A£plication to Register Permanent Residence or Adjust Status, that he resided and worked inl IRussia as a self-employed confectioner-technologist from January 2012 under November 201 7 and does not mention his employment with ____ which is located in I Iis in eastern Russia on its border with China, while I Iis in western Russia on the Baltic Sea. In addition, we note that the Petitioner submitted copies of credentials indicating that he was a student at I Ischool, completing pastry courses in 2013, 2014 and 2017, while also claiming that I Irelied on him to teach master classes during this time period.
Based on these ambiguities in the record regarding the Petitioner's role with I ] [the] [the] letter alone is insufficient to corroborate the Petitioner's employment in a leading or critical role with that company.
This issue remains unresolved, and the Petitioner did not establish his employment withl I The The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
For all these reasons, the Petitioner has not shown he meets this criterion.
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(B).
The Petitioner argues:
USCIS should find that the [Petitioner] qualifies for the classification as a person of exceptional ability via comparable evidence as presented in the record. Insofar as the licensing requirement is not applicable to the [Petitioner's] field of endeavor as it is not subject to licensing requirements, comparable evidence submitted herewith to establish that the [Petitioner] possesses a degree of expertise that is significantly above that ordinarily encountered in the field should be considered by the USCIS.
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) provides that "[i]f the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." When evaluating such comparable evidence, officers consider whether the criteria are readily applicable to the beneficiary's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in the regulation. See 6 USCIS Policy Manual, supra, at F.5(B)(2). General assertions that any of the six objective criteria do not readily apply to the beneficiary's occupation are not acceptable, and the petitioner should explain why the evidence it has submitted is comparable. Id.
Here, the Petitioner has not supported his assertion that his occupation is not subject to licensing requirements. Furthermore, the Petitioner did not identify which evidence, if any, should be considered and how the evidence is comparable to establish his eligibility. The burden remains with the Petitioner to establish eligibility for the benefit. Chawathe, 25 I&N Dec. at 3 75-76.
Accordingly, the Petitioner did not establish that he meets this criterion through the submission of comparable evidence.
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E).
As indicated above, the Director determined that the Petitioner met this criterion. Because the record does not support the regulatory requirements, we will withdraw the Director's decision for this criterion.
The Director stated that "[t]he documentation you submitted from _______,appears to suggest that this organization was qualify [sic] as a professional association." However, for the reasons discussed under the employment criterion, the Petitioner has not presented independent, objective evidence establishing his employment or membership withl I Moreover, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) requires "[e ]vidence of membership in professional associations." Further, the regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Profession means one of the occupations listed in section 101(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." The Petitioner did not demonstrate thatl I I I qualifies as a professional association, one that has a membership body comprised of individuals who have earned a U.S. baccalaureate degree or its foreign equivalent, or that the organization otherwise constitutes a professional association consistent with this regulatory criterion. For these reasons, we withdraw the Director's favorable determination for this criterion.
Conclusion
The Petitioner did not demonstrate eligibility for any of the criteria discussed above. Although the Petitioner also claims eligibility for the significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), we need not reach this claim as he cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii). Accordingly, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of expertise required for exceptional ability classification. 5 Accordingly, we reserve these issues. 6 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.