dismissed EB-2 NIW Case: Choreography

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac)' 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: DEC 2 8 2010 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203 (b )(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 1153(b)(2), as an alien of exceptional ability or a member of the professions 
holding an advanced degree. The petitioner seeks employment as a choreographer. The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of an alien employment 
certification, is in the national interest of the United States. The director found that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner had not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a statement and additional evidence. For the reasons discussed 
below, we uphold the director's basis of denial. Moreover, we withdraw the director's finding that the 
petitioner is a member of the professions holding an advanced degree. As will be explained below, the 
petitioner has not established that he has the equivalent of a U.S. Master of Arts degree as stated by the 
director and, most significantly, he is not a member of the professions. As we further find that the 
petitioner has not established that he is an alien of exceptional ability, he does not qualify for the 
classification sought. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Section 203(b) of the Act states in pertinent part that: 
(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 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 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of job offer. 
(i) ... the Attorney General may, when the Attorney General deems it to 
be in the national interest, waive the requirements of subparagraph (A) 
Page 3 
that an alien's services in the sciences, arts, professions, or business be 
sought by an employer in the United States. 
I. Advanced Degree Professional 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive 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." Id. 
Initially, the petitioner submitted his resume on which he indicated that he graduated in 1987 "with 
[a] 4 year degree, with second Degree of Specialization." the Assistant Director of 
the Province Cultural Center of Kielce certifies that the petitioner attended a cour~g him 
as a Folk Dance Instructor including 600 teaching hours from 1985 through 1987. _ states 
that the petitioner's coursework "is equivalent to having a specialist secondary education." A 
certificate from the Ministry of Culture and Art, Cultural Dissemination Methodology Center 
confirms that the petitioner completed a course in dance in 1987 that entitled the petitioner to apply 
for a license as an instructor of amateur artistic groups or interest groups. 
In response to the director's request for additional evidence, the petitioner submitted a Form ETA 
750B listing his degree from the University of Kielce as a "Master's" degree. The petitioner also 
submitted a transcript from the University of Kielce covering coursework from 1983 through 1987. 
The final page, according to the translation, references a Master's Thesis and states that the petitioner 
"earned his Master's Degree in Choreography, teaching specialty." The petitioner also submitted an 
evaluation of this education from Professor Walter Kennedy of the University of Oregon. Professor 
Kennedy, however, concludes that the petitioner's academic credential by itself is only equivalent to 
a U.S. baccalaureate. Professor Kennedy only concludes that the petitioner has the equivalent of a 
Master of Arts in Dance by combining the petitioner's education and experience. 
In light of the above, the petitioner's foreign degree is only equivalent to a U.S. Bachelor of Arts 
degree. As stated above, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) does provide that a foreign 
equivalent degree to a U.S. baccalaureate followed by five years of progressive experience is 
equivalent to an advanced degree. While the petitioner has documented more than five years of post­
baccalaureate experience, the letters do not provide a sufficient description of the petitioner's duties 
such that we can conclude that this work has been progressive. 
Regardless, even if we accepted that the petitioner had at least five years of progressive post­
baccalaureate experience, the petitioner is not a member of the professions. As defined at section 
101(a)(32) of the act, profession "shall include but not be limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or 
seminaries." The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as follows: 
Page 4 
[O]ne 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 into the occupation. 
We acknowledge that the petitioner previously taught at the Polish Supplementary 
School. The record, however, does not establish that this "school" is an actual school rather than an 
after-school cultural and recreational program. Regardless, the petitioner seeks to continue working for 
the Polish American Folk Dance Company. Thus, even if the petitioner previously taught in a school, 
we still could not classify the petitioner as a professional because he does not seek to continue working 
as a school teacher. See Matter of Shah, 17 I&N Dec. 244, 246-47 (Reg'l. Comm'r. 1977). 
As the petitioner does not seek to work as an elementary, secondary, collegiate, academy or seminary 
teacher, the next issue, pursuant to 8 C.F.R. § 204.5(k)(2), is whether a baccalaureate is the minimum 
requirement for entry into the occupation. The Department of Labor's Occupational Outlook 
Handbook (OOH) provides: 
Many colleges and universIties award bachelor's or master's degrees in dance, 
typically through departments of dance, theater, or fine arts. The National Association 
of Schools of Dance is made up of 74 accredited dance programs. Many programs 
concentrate on modem dance, but some also offer courses in jazz, culturally specific 
dance, ballet, or classical techniques. Courses in dance composition, history and 
criticism, and movement analysis are also available. 
A college education is not essential for employment as a professional dancer; 
however, many dancers obtain degrees in unrelated fields to prepare themselves for 
careers after dance. The completion of a college program in dance and education is 
usually essential to qualify to teach dance in college, high school, or elementary 
school. (See the statement on teachers-postsecondary and teachers-kindergarten, 
elementary, middle, and secondary elsewhere in the Handbook.) Colleges and 
conservatories sometimes require graduate degrees but may accept performance 
experience. A college background is not necessary for teaching dance or 
choreography in local recreational programs. Studio schools prefer teachers to 
have experience as performers. 
(Bold emphasis added.) See http://www.bls.gov/oco/ocos094.htm#training. accessed on December 
17, 2010 and incorporated into the record of proceeding. According to this government source, a 
baccalaureate degree is not required for teaching dance or choreography in local recreational 
programs or at studio schools. Thus, the petitioner does not seek to work in the professions. 
II. Exceptional Ability 
The next issue is whether the petitioner qualifies as an alien of exceptional ability. The regulation at 
8 C.F .R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of which an alien must 
meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business: 
Page 5 
(A) 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 of exceptional ability 
(B) Evidence in the form of letter(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 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
If a petitioner has submitted the requisite evidence, U. S. Citizenship and Immigration Services 
(USCIS) determines whether the evidence demonstrates "a degree of expertise significantly above 
that ordinarily encountered" in the arts. 8 C.F.R. § 204.5(k)(2). Kazarian v. USCIS, 596 F.3d 1115 
(9th Cir. 2010), sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. While involving a different classification 
than the one at issue in this matter, the similarity of the two classifications makes the court's 
reasoning persuasive to the classification sought in this matter. In reviewing Service Center 
decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, 
the AAO will conduct a new analysis if the director reached his or her conclusion by using a one-step 
analysis rather than the two-step analysis dictated by the Kazarian court. See 8 C.F.R. 
103.3(a)(1)(iv); Soltane v. DOJ, 381 F.3d at 145; Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d at 1043 (recognizing the AAO's de novo authority). 
Evidentiary Criteria 
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 of 
exceptional ability 
As discussed above, the petitioner's foreign degree is equivalent to a U.S. baccalaureate. While 
Professor _concludes that the petitioner has the equivalent of a Master of Arts in Dance, he 
only reaches this conclusion by combining the petitioner's education and experience. 
We acknowledge that the regulation at 8 C.F.R. § 204.5(k)(2) defines an advanced degree as a degree 
above a baccalaureate or a baccalaureate plus five years of post baccalaureate experience. This 
definition, however, pertains to members of the professions holding an advanced degree. With 
respect to aliens of exceptional ability, education and experience are considered separately pursuant 
to 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (B). Thus, for purposes of 8 C.F.R. § 204.5(k)(3)(ii)(A), the 
petitioner has a Bachelor of Arts in dance. That degree is qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
Evidence in the form of letter(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 
The petitioner claims 25 years of qualifying experience. The petitioner has submitted the following 
evidence in support of that claim: 
1. A full-time professional training instructor at the Complex of Agricultural Schools III 
Tarnobrzeg from September 1, 1985 to June 30,1992; 
2. A Certificate of Employment as a choreographer instructor at the Dzikowianie Song and 
Dance Troupe from April 1, 1986 to June 30, 1989; 
3. A business registration for a studio bearing the petitioner's name, a private school of dance 
registered to do business in Tarnobrzeg as of October 4, 1993; 
4. A Certificate of Employment for full-time employment as an educator-choreographer at the 
Occupational Therapy Workshops at the Polish Society for the Mentally Handicapped in 
Tarnobrzeg from December 1993 through April 30, 1994; 
5. A letter from certifying that the petitioner was employed at the Zawichost 
Municipal and Township Cultural Center as a choreographer from May 1, 1994 through June 
30, 1998; 
6. A letter from President of Krakowianki & Gorale, which appears to be 
affiliated with School although at a different address, confirming 
the petitioner's employment as a dance instructor from January 2000 through the date of the 
letter, March 24, 2004; 
7. A letter from Church confirming 
the petitioner's full-time employment as and school on a P-3 
nonimmigrant visa as of August 15,2000 through the date of the letter, March 5, 2003; 
8. A letter from A. Pastor Church as of September 
2003 confirming the petitioner's continued employment at the church through the date of the 
letter, April 10, 2006, but failing to state whether the employment continued full-time; 
Page 7 
9. A letter from Director and Principal of the Polish 
Supplementary School confirming employment as a dance instructor from September 2000 
through the date of the letter, March 12,2004; 
10. An Employment Agreement between the petitioner at the Polish American Folk Dance 
Company dated February 8, 2007 for employment as a choreographer no less than 35 hours 
per week; and 
11. A July 2009 letter from xecutive Director of the Polish American 
Folk Dance Company confirming the petitioner's full-time employment as of October 2005. 
The record also contains a June 28, 1985 letter from the Polish Army asserting that while on active 
duty, the petitioner "qualified in eliminations for the Polish Army Central Artistic Group ballet 
troupe." A separate letter from the Polish Army Central Artistic Group certifies that the petitioner 
was employed as a dancer from December 27, 1983 through June 30, 1985. Neither letter suggests 
that this active-duty experience was full-time work experience as a dance instructor or 
choreographer. 
In light of the above, the petitioner has demonstrated the following employment as a choreographer 
or dance instructor as of the date of filing, April 14, 2008: (1) from April 1, 1986 through June 30, 
1989 (39 months), (2) December 1993 through June 1998 (55 months), (3) January 2000 through 
March 2004 (51 months) and (4) February 8, 2007 through April 14, 2008 (15 months). This 
employment totals 160 months, or 13 years and four months. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B), however, requires evidence of at least 10 years of 
full-time experience. Given that the petitioner was working full-time as an instructor at an 
agricultural school prior to June 1992, it does not appear that any of his choreography experience 
prior to that date could have been full-time. The only relevant experience the petitioner's employers 
explicitly confirm as full-time includes his five months of ~lish Society for the 
Mentally Handicapped; his six months of employment for_and his 30 months 
of employment for the Polish American Folk Dance as of the date of filing, April 14,2008. This full 
time experience amounts to only 41 months (three years and five months) of qualifying experience. 
Thus, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements set forth at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
A license to practice the profession or certification for a particular profession or occupation 
The petitioner submitted December 19, 1985 and January 5, 1988 Dance Qualification Certificates in 
instructor categories from the Department of Culture and Art, Zofia Czub, M.A. (Province 
Government in Tarnobrzeg). The petitioner also submitted a January 5, 1988 authorization to 
practice as an Instructor, Class II. These licenses/certifications meet the plain language of the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
Page 8 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability 
The petitioner submitted his 2007 Internal Revenue Service (IRS) Form 1040, U.S. Individual 
Income Tax Return, Schedule C-EZ, showing $60,000 in income as a choreographer. The petitioner 
also included evidence of $2,507 in income from the Polish Supplement School of_ 
Inc. in the same year. Without evidence of the typical income for a choreographer, 
however, the petitioner cannot demonstrate that this income "demonstrates exceptional ability" as 
required by the plain language of 8 C.F.R. § 204.5(k)(3)(ii)(D). 
Evidence of membership in professional associations 
The petitioner did not submit any evidence of membership in professional associations. 
Significantly, as stated above, the petitioner does not work in a profession. Thus, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of the regulation at 8 
C.F.R. § 204.5(k)(3)(ii)(E). 
Evidence of recognition for achievements and significant contributions to the industry or 
field by peers, governmental entities, or professional or business organizations 
The petitioner submitted a certificate of recognition for participation at the Polish Folk Dance 
Association of the Americas, Inc. Chicago Festival 2007. A certificate confirming participation at an 
event is not recognition for achievements and significant contributions to the field. Thus, the 
petitioner has not submitted qualifying evidence that meets the plain language requirements of 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
In light of the above, the petitioner has not submitted evidence that qualifies under three of the 
evidentiary criteria. Nevertheless, we will next conduct a final merits determination that considers 
all of the evidence in the context of whether or not the petitioner has demonstrated that the 
beneficiary has "a degree of expertise significantly above that ordinarily encountered." 8 C.F.R. 
§ 204.5(k)(2). Section 203(b )(2)(C) of the Act provides that the possession of a degree, diploma, 
certificate or similar award from a college, university school or other institution of learning or a 
license to practice or certification for a particular profession or occupation shall not by itself be 
considered sufficient evidence of exceptional ability. Thus, in our final merits determination, we 
must determine whether the beneficiary's degree and license are indicative of or consistent with a 
degree of expertise significantly above that ordinarily encountered in the arts. 
As quoted above, the OOH indicates that the completion of a college program in dance and 
education is usually essential to qualify to teach dance in college, high school, or elementary school 
but is not required for teaching at recreational programs or studio schools. See 
http://www.bls.gov/oco/ocos094.htm#training. accessed on December 17, 2010 and incorporated 
into the record of proceeding. 
Page 9 
While the petitioner's education may be more than required to teach at local recreational programs, 
the petitioner has not established that his degree is indicative of a degree of expertise significantly 
above that ordinarily encountered in the arts, including school teachers. Similarly, the petitioner 
submitted a Polish Minister of Culture and Arts certificate and a Minister order suggesting that the 
petitioner's license is akin to certification to teach in Polish schools. The petitioner has not 
demonstrated that meeting the minimum competency requirements to teach at a Polish school is 
indicative of or consistent with a degree of expertise significantly above that ordinarily encountered 
in the arts. Thus, even if we accepted that the petitioner had documented sufficient years of full-time 
experience, the remaining evidence submitted under 8 C.F.R. § 204.5(k)(3)(ii) is not sufficient to 
demonstrate that the petitioner qualifies for classification as an alien of exceptional ability. 
III. National Interest 
Neither the statute nor pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest 
by increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, WIst Cong., 1st Sess., 11 (1989). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897, 60900 (Nov. 29,1991), states, in pertinent part: 
The Service believes it appropriate to leave the application of this test as flexible as 
possible, although clearly an alien seeking to meet the [national interest] standard must 
make a showing significantly above that necessary to prove the "prospective national 
benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest 
with the alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter oj New York State Dep't. oj Transp., 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter 
"NYSDOT"), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Id at 217. Next, the petitioner must show that the proposed benefit will be 
national in scope. Id Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. Id at 217-18. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, the 
petitioner must establish that the alien's past record justifies projections of future benefit to the national 
interest. Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the 
national interest cannot suffice to establish prospective national benefit. The use of the term 
"prospective" requires future contributions by the alien, rather than facilitates the entry of an alien with 
no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. Id 
Page 10 
We concur with the director that the petitioner works in an area of intrinsic merit, choreography with 
a Polish folk influence. The director's request for additional evidence inquired how the proposed 
benefits of the petitioner's work would be national in scope. In response, the petitioner asserted that 
the national scope was apparent from his work with the Polish American Folk Dance Company, a 
"full scale dance group performing on stage at international events, festivals or their own 
performances for the public." The petitioner asserted that the group was "well known" and performs 
nationally, traveling beyond New York City "on average every two weeks." Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). In support of this assertion, 
the petitioner claimed to be submitting programs and photographs. Programs carry more weight than 
self-serving captions on photographs. Regardless, of the performances the petitioner lists in his 
response to the director's request for additional evidence, only two are outside New York State. 
These two out of state performances include a Chicago, Illinois festival in 2007 and the 2009 
American Institute of Polish Culture's 37th International Polonaise Ball attended by President Lech 
Walesa in Miami, Florida. The 2009 event postdates the date of filing in this matter, April 14, 2008. 
The program for the August 3, 2007 Polish Folk Dance Association of America reflects that the 
petitioner's group was one of seven dance troupes to perform at that event. In addition, the record 
contains the program for the American Institute of Polish Culture's 35th International Polonaise Ball 
in honor of the 400th Year of Jamestown, Virginia. The event took place in Miami, Florida. The 
program reveals that the Polish American Folk Dance Company was the primary dance 
entertainment at the event and lists the petitioner as the choreographer for the company. The 
remaining programs are all for events in New York. 
The director concluded that the proposed benefits of the petitioner's work would not be national in 
scope. On appeal, the petitioner asserts that his work is national in scope in that it is not limited to a 
small national group or a single project. The petitioner asserts that he develops and promotes music 
and world dance culture for general American spectators, entertaining and educating. The petitioner 
reiterates the claim that he has choreographed dance numbers for performances nationwide and 
asserts that his troupe was invited to the White House. The petitioner notes the letters in the record 
from a variety of politicians. 
The record does not support the assertion that the troupe has been invited to the White 
House. The letter contained in the record contains no such 
invitation. Significantly, that letter is accompanied by another letter from the White House advising 
that "Presidential messages" such as the one included in the record may not be used as an 
endorsement. The letters from politicians appear to be standard responses from the public relations 
staff of those politicians to requests for such letters. Nothing in the record suggests that these letters 
are personal endorsements of the events rather than the requested letters of congratulations as a 
constituent service. While the petitioner also submitted an apostolic blessing from Pope Benedict 
XVI, the certificate indicates that it is in response to a request for such a blessing. The record does 
not establish that such certificates of blessing are not routinely issued in response to requests. 
Page 11 
NYSDOT, 22 I&N Dec. at 217, n.3 provides the following examples of occupations where the 
benefits are not national in scope: 
For instance, pro bono legal services as a whole serve the national interest, but the 
impact of an individual attorney working pro bono would be so attenuated at the 
national level as to be negligible. Similarly, while education is in the national interest, 
the impact of a single schoolteacher in one elementary school would not be in the 
national interest for purposes of waiving the job offer requirement of section 
203(b )(2)(B) of the Act. As another example, while nutrition has obvious intrinsic 
value, the work of one cook in one restaurant could not be considered sufficiently in the 
national interest for purposes of this provision of the Act. 
Id. We concur with the director that the impact of a single choreographer for a local cultural dance 
troupe, even one that occasionally travels to perform, is negligible on the field of dance at the 
national level. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater 
extent than an available u.S. worker with the same minimum qualifications. Eligibility for the 
waiver must rest with the alien's own qualifications rather than with the position sought. In other 
words, we generally do not accept the argument that a given project is so important that any alien 
qualified to work on this project must also qualify for a national interest waiver. At issue is whether 
this petitioner's contributions in the field are of such unusual significance that the petitioner merits 
the special benefit of a national interest waiver, over and above the visa classification he seeks. By 
seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must 
demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. 
at 219, n. 6. 
The petitioner has noted that one of his previous employers obtained an alien employment certification 
for the petitioner in 2001 but that USCIS denied a subsequent Form 1-140 petition based on that 
certification because the employer could not demonstrate its ability to pay the proffered wage. The 
petitioner asserts that jobs in his field can be short term and part-time and, thus, the alien employment 
certification process is not applicable. First, the petitioner has submitted a three-year contract for full­
time employment with the Polish American Folk Dance Company. Thus, the petitioner has not 
established that the alien employment certification process is not currently applicable to him. 
Moreover, the fact that a previous employer obtained such a certification reveals that the process itself 
is applicable. The fact that this employer was subsequently unable to demonstrate an ability to pay the 
proffered wage does not demonstrate that the alien employment certification process itself is not 
applicable to choreographers. Second, the inapplicability or unavailability of an alien employment 
certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must 
demonstrate that the alien will serve the national interest to a substantially greater degree than do others 
in the same field. !d. at 218, n. 5. 
In response to the director's request for additional evidence, the petitioner asserted that his position 
requires education and training in national dances and familiarity with national songs, language and 
general culture of Poland, Slovakia or Ukraine. The petitioner concludes that there is "definitely a 
demand for persons with such qualifications, but finding an individual with similar qualification on 
the American job market could be very difficult task." The issue of whether similarly-trained 
workers are available in the United States, however, is an issue under the jurisdiction of the 
Department of Labor. Id. at 221. More specifically, education and specialized training can be 
articulated on an application for an alien employment certification. Id. 
Ultimately, the record lacks evidence that the petitioner has influenced the field of choreography. 
While the record contains letters from politicians, diplomats and members of cultural societies 
expressing congratulations or appreciation for the petitioner's work, the record lacks any evidence 
that other choreographers nationwide have taken notice of the petitioner's work and have been 
influenced by that work. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved alien employment certification will be in 
the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.