dismissed EB-2 NIW Case: Dance

U.S. Citizenship 
and Immigration 
Services 
In Re: 9433800 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a dance competitor and instructor, seeks second preference immigrant classification as 
a an individual of exceptional 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. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability, and that he had not had not established 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 
With the appeal, the Petitioner submits a brief asserting that he is eligible for exceptional ability 
classification and a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 
I. 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 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 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 alien'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)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of 
exceptional ability. A petitioner must submit documentation that satisfies at least three of the six 
categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). 
Furthermore, 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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
A. Exceptional Ability 
The Petitioner asserted that he 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 recognition for achievements criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In the appeal brief: the Petitioner claims that he also meets the ten years of full-time experience 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) and the membership in professional associations criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(E), but does not specifically identify any erroneous conclusion of law or 
statement of fact relating to the Director's determinations for these criteria. 4 Nor does the appeal brief 
even reference the Director's discussion regarding the aforementioned criteria. Additionally, while 
the Petitioner states that "[b ]ased on the evidence submitted," he has met the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) and (E), he does not identify the evidence. Without offering specific arguments 
to overcome the Director's findings, the Petitioner has not established that he satisfies at least three of 
the criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional 
ability classification. 
B. National Interest Waiver 
The remaining issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job offer, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 For example, with respect to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the Director stated that the letters of 
recommendation submitted by the Petitioner did not indicate he has "at least 10 years of full-time experience in an 
occupation involving dance." The Director also noted that while ·'the Petitioner submitted his own letter stating that he 
has over 10 years of full-time experience in the field of dance," his ·'own statement regarding his employment in the field 
is not sufficient to meet this criterion." 
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Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner stated that he intends to 
use his "expertise and experience inl !dance to represent the U.S. at major! I dance events and 
to train U.Sj ldance athletes." He contends that his proposed work stands to "raise [the] prestige of 
the U.S. [i]n the international swing dance arena and increase the competitiveness of the country in this 
field." 
The Petitioner provided a letter froml I a world professional ten dance champion, 
asserting that the Petitioner's "proposed endeavor, which is competing inl I dance championships, 
promoting! I dance on the national level, and coaching I I to future champions. clearly has 
substantial merit and national importance." The record also includes a letter fr01~ la 
dance coach and choreographer for I I al I dance organization, stating that the 
Petitioner "intends to compete on the national scale, inspire and teach future champions" and that his 
proposed work stands "to further promote and develop I I dancing nationwide and contribute to the 
cultural enrichment" of the United States. 
In denying the petition, the Director concluded that the Petitioner had not demonstrated the national 
importance of his proposed endeavor. The Director stated that the Petitioner did not submit a detailed 
description of the proposed endeavor and sufficient documentary evidence showing that his undertaking 
stands to have broader implications in his field, significant potential to employ U.S. workers, substantial 
positive economic effects, or a broader effect on cultural or artistic enrichment at a level indicative of 
national importance. 
On appeal, the Petitioner maintains that his "proposed endeavor is of national importance" and that his 
work offers a "national benefit as he will continue to teach dance applying his innovative and uniquely 
effective approach." 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking 
may have national importance for example, because it has national or even global implications within 
a particular field." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance, may well be understood to have national importance." Id. at 890. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. While the Petitioner 
asserts that he intends to compete and teach dancing in the United States, he has not offered sufficient 
information and evidence to demonstrate that the prospective impact of his proposed endeavor rises 
to the level of national importance. For example, he has not demonstrated that his involvement as a 
competitor stands to impact his sport or U.S. cultural interests at a level consistent with having national 
importance. Nor has he shown that his proposed instruction is at a level that would offer national 
implications forl I dance training , or that the implications of such work stand to impact the sport 
more broadly . In Dhanasar we determined that the petitioner's teaching activities did not rise to the 
level of having national importance because they would not impact his field more broadly. Id. at 893. 
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Here, we conclude the record does not show that the Petitioner's proposl d endeavor stands to 
sufficiently extend beyond his future competitions and trainees to impact dancing more broadly 
at a level commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the record does not show that benefits to the U.S. 
regional or national economy resulting from the Petitioner's competitive participation and dance 
instruction would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Id. at 890. Accordingly, the Petitioner's proposed work does not meet the first prong of the Dhanasar 
framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar , therefore, would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
as an individual of exceptional ability . Furthermore, as the Petitioner has not met the requisite first prong 
of the Dhanasar analytical framework, we conclude that he has not established he is eligible for or 
otherwise merits a national interest waiver as a matter of discretion. 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. 
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