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. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2).
The Director ofthe Nebraska Service Center denied the petition, concluding that the Petitioner did not qualify for the EB-2 classification, and that she had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest.
On appeal, the Petitioner submits a brief asserting that she is an individual of exceptional ability and is eligible for a national interest waiver. In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit by a preponderance o f evidence . Section 291 o f the Act, 8 U.S.C . § 1361; Matter ofChawathe, 25 l&N Dec. 369, 376 (AAO 2010). Upon de nova 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 [individuals] 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 who because of their exceptional ability in the sciences, arts, or business, will p. 2 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) National interest waiver. ... [T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an [individual'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)(3)(ii) sets forth the following six criteria, at least three of which an individual must meet in order to qualify as an individual of exceptional ability in the sciences, the arts, or business:
(A) An official academic record showing that the [individual] has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the [individual] has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation; (D) Evidence that the [individual] has commanded a salary, or other remuneration for services, which demonstrates exceptional ability; (E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
A petitioner must provide documentation that satisfies at least three of six regulatory criteria to meet the initial evidence requirements for this classification. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). If a petitioner satisfies these initial requirements, we then consider the entire record to determine whether the individual has a degree of expertise significantly above that ordinarily encountered. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); See USCIS 6 Policy Manual F.2, https://www.uscis.gov/policy- manual/volume-6-part-f-chapter-2.
Only those who demonstrate "a degree of expertise significantly above that ordinarily encountered" are eligible for classification as individuals of exceptional ability. 8 C.F.R. § 204.5(k)(2).
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 of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 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.
Analysis
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 individual of exceptional ability. On appeal, the Petitioner does not assert nor does the record establish that she is eligible for the EB-2 classification as a member of the professions holding an advanced degree. Therefore, she must show that she qualifies as an individual of exceptional ability.
A Area ofExceptional Ability
As a preliminary matter, we conclude that the Petitioner has presented insufficient and inconsistent Dhanasar states that after a petitioner has established evidence regarding the nature of the occupation in which she is seeks employment in the petition. indicated that her prospective job title is "entrepreneur," in the initially submitted Application for Alien Employment Certification, Form ETA-750 Part B, and in part 6 of the petition, and noted in part 6.3 of thepetitionthathernontechnicaljobdescriptionwasdescribedinanattachmenttothepetition. However, she did not provide an attachment that explains what her prospective employment as an "entrepreneur" will specifically entail with the petition, other than her resume in which she indicates that she is "looking for a challenging, fast-paced environment with the corporate field to utilize my accounting and analytical skills and develop my skill set further whilst adding value to my employer." She also listed photography as one o f several hobbies that she engages in.
The Director determined that the record did not sufficiently detail the substantive nature ofher prospective employment as an "entrepreneur," and he issued a request for evidence (RFE) asking for a detailed description ofthe Petitioner's proposed employment, supporting by documentary evidence. In response, the Petitioner provided a statement indicating that her "proposed future employment [will be] as an entrepreneur in the field of photography," indicating:
[The Petitioner] intends to establish her diverse photography business in the United States, leveraging her accounting and photography expertise. The company, which will be deny a national interest waiver to be discretionary in nature).
In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01).
See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or While we may not discuss every document submitted, we have reviewed and considered each one.
She p. 4 headquartered in Florida, will offer exceptional photography services and sell framed photographs to customers of U.S. restaurants, helping to advertise and promote the restaurant's meals, services, and events.
On appeal, the Petitioner reiterates the Petitioner's intention to establish and operate a photography business in the United States. The Petitioner's initial description of her proposed endeavor did not include plans for employment in the field of photography; instead, the Petitioner initially indicated that she would seek employment in the accounting field with a U.S. corporation. We conclude the RFE response and appeal brief present a new set of facts regarding the occupation in which the Petitioner seeks employment through this petition, which is material not only to establishing eligibility as an individual of exceptional ability, but also to her eligibility for a national interest waiver. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90.
The Petitioner must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). Here, the Petitioner's intention to seek employment in the field of photography presented after the filing date cannot retroactively establish eligibility.Not eligible at the time of filing A petitioner may not make material changes to a petition that has already been filed to make an apparently deficient petition conform to USCIS requirements. See Matter oflzwnmi, 22 I&N Dec. 169, 175 (Comm'r 1998); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which requires that beneficiaries seeking employment-based immigrant classification must possess the necessary qualifications as ofthe filing date of the visa petition. We conclude that the Petitioner has not provided sufficient and consistent evidence to establish what her prospective occupational field will be, in order to demonstrate that she possesses "a degree of expertise significantly above that ordinarily encountered" within that occupation. 8 C.F.R. § 204.5(k)(2). The Petitioner must resolve this inconsistency and ambiguity in the record with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, the Petitioner has not demonstrated that she is an individual of exceptional ability and that she qualifies for the EB-2 classification.
B. Evidentiary Criteria for Exceptional Ability
The Petitioner asserted that she meets at least three of the regulatory criteria for classification as an individual of exceptional ability. In denying the petition, the Director determined that the Petitioner fulfilled only the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A). In the appeal brief, the Petitioner maintains that she also meets the licensure criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), and the recognition for achievements and significant contributions criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F).
As discussed, the Petitioner asserted at the time of filing the petition that she is seeking employment in the accounting occupation. We reviewed and considered the evidence of record within the context of this occupation to determine whether the Petitioner satisfies at least three of six regulatory criteria to meet the initial evidence requirements for this classification, but conclude for the following reasons that she has not done so.
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area o f exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) p. 5 The Petitioner submitted a "Diplom Spetsialista" diploma for a program of study in the field of accounting, issued by theI IUniversity ofEconomics in Belarus in 2017. The Petitioner has met this criterion.
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) On appeal, the Petitioner indicates that "USCIS should have found that the [Petitioner] qualifies for classification as a person of exceptional ability via comparable evidence as presented in the record," but she does not identify or discuss the specific evidence, if any, in the record that should be considered as part of this determination. When dismissing an appeal, we generally do not address issues that were not raised with specificity on appeal. Issues or claims that are not raised on appeal are deemed to be Since the Petitioner did not address this issue with specificity on appeal, we deem the issue waived and conclude the Petitioner has not met this criterion.
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) The Director concluded that the evidence of record was insufficient to meet this criterion. On appeal, the Petitioner asserts that the Director erred in his determination, but she does not identify the basis for her assertions regarding error on the part of the Director. Since the Petitioner did not address this issuewithspecificityonappeal,wedeemtheissuewaived. ThePetitionerhasnotestablishedthatshe meets this criterion.
In summary, the record supports the Director's finding that the Petitioner did not meet at least three ofthe six regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii).Exceptional ability not established Therefore, we need not provide a final merits determination to evaluate whether the Petitioner has achieved the required level of expertise required for the exceptional ability aspect of the EB-2 classification.
C. National Interest Waiver
The Petitioner has not established that she is eligible for the EB-2 classification. Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the remaining issues, including whether she is eligible for a national interest waiver. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofM-F-O-, 28 I&N Dec. 408, 417 n.14 (BIA 2021) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
"waived."
See, e.g., Matter o f M-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view o f issue waiver varies from circuit to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief).
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.