dismissed EB-2 NIW Case: Dance

PUBLIC COPY 
epartment of Homeland Security 
FILE: - Office: NEBRASKA SERVICE CENTE Date: Nl 1 8 2005 
LIN 03 160 53885 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professi ns Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 20 of the Immigration 
and Nationality Act, 8 U.S.C. $ 1153(b)(2) 
ON BEHALF OF PETITIONER: I 
INSTRUCTIONS: 
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Th~s is the decision of the Administrative Appeals Office in your case. All docum nts have been returned to 
decided your case. Any further inquiry must be made to t at office. 
-II'/ Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by th Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
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The petitioner seeks classification pursuant to section 203(b)(2) of the and Nationality Act (the 
Act), 8 U.S.C. 1 153(b)(2), as an alien of exceptional ability. The employment as a dancer. 
The petitioner asserts that an exemption from the requirement of a of a labor certification, is 
in the national interest of the United States. The director found for classification as 
an alien of exceptional ability, but that the petitioner had not the requirement 
of a job offer would be in the national interest of the United States. 
On appeal, counsel asserts that the director erred in requiring evidence that disti the petitioner from 
other members of the touring company "Riverdance: The Show" and determining eventual 
plans to teach were disqualifying. We agree with counsel that the director's 
eventual plans to teach are misplaced. The petitioner intends to continue 
director. Due to the physical nature of dance, it is not realistic to expect 
careers as long as researchers, engineers or business professionals. Under 
athlete would be able to qualify for the national interest waiver. Thus, we 
this issue. For the reasons discussed below, however, we concur with the 
does not sufficiently distinguish the petitioner from other members of her troupe. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees o Aliens of Exceptional 
Ability. -- 
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(A) In General. -- Visas shall be made available . . . to qualified immigrant who are members 
of the professions holding advanced degrees or their equivalent or wh because of their 
exceptional ability in the sciences, arts, or business, will substantially bene t prospectively the 
national economy, cultural or educational interests, or welfare of the Unite States, and whose 
services in the sciences, arts, professions, or business are sought by an emp oyer in the United 
States. 
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(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General 
the national interest, waive the requirement of subparagraph (A) 
services in the sciences, arts, professions, or business be 
employer in the United States. 
As stated above, the director found that the petitioner is an alien of exceptional a ility. That classification, 
however, normally requires a labor certification. Thus, the only issue to be decided s whether a waiver of that 
requirement is in the national interest. 
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Neither the statute nor pertinent regulations define the term "national interest." Add 
provide a specific definition of "in the national interest." The Committee on the Ju 
tionally, Congress did not 
liciary 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 econo ically and otherwise. . . ." 
S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
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The Service believes it appropriate to leave the application of this test as exible as possible, 
although clearly an alien seeking to meet the [national interest] standard st make a showing 
significantly above that necessary to prove the "prospective national [required of aliens 
seeking to qualify as "exceptional."] The burden will rest with to establish that 
exemption from, or waiver of, the job offer will be in the national case is to be 
judged on its own merits. 
Supplementary information to the regulations implementing the Immigration Act of 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
Matter of New York State Dep't. of Transp., 22 I&N Dec. 215 (Comm. 1998), set forth several factors 
which must be considered when evaluating a request for a national interest waiver. it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver that the alien will 
serve the national interest to a substantially greater degree than would an having the same 
minimum qualifications. 
1990 (IMMACT), published 
It must be noted that, while the national interest waiver hinges on prospective nation 1 benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to he national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the nation I  interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is sed here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demo strable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
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We concur with the director that the petitioner works in an area of intrinsic merit, step dancing, and that 
the proposed benefits of her work, awareness and enjoyment of this form of d would be national in 
scope. It remains, then, to determine whether the petitioner will benefit the 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 the position sought. In 
other words, we generally do not accept the argument that a given project is that any alien 
qualified to work on this project must also qualify for a national interest 
petitioner's contributions in the field are of such unusual significance 
benefit of a national interest waiver, over and above the visa 
benefit, the petitioner assumes an extra burden of proof. A 
achievement with some degree of influence on the field as a 
Initially, counsel asserted that the petitioner qualifies for the national interest waiver ecause she actually meets 
the eligibility requirements for a higher classification, aliens of extraordinary a ility pursuant to section 
203(b)(I)(A) of the Act. As stated above, the director concluded that the eviden e did not distinguish the 
petitioner from other members of her troupe. On appeal, counsel asserts that the irector applied to strict a E 
standard; such distinction is only required for aliens seeking eligibility pursuant t section 203(b)(l)(A) of the 
Act. While an alien need not establish eligibility pursuant to 203(b)(l)(A) to btain a waiver of the labor 
certification requirement in the national interest, we note that such eligibility is he basis of counsel's initial 
claim. In fact, counsel continues to assert that the petitioner has distinguished he self from other members of 
her troupe. 
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We cannot conclude that the national interest waiver was intended as a blanket for every member of a 
large dance troupe that successfully tours nationally. Thus, while the petitioner demonstrate the type of 
personal national acclaim required for aliens of extraordinary ability, some her from 
other members of the large troupe (42 dancers) is required. 
The petitioner was not a member of the original "Riverdance" cast that arguable credit for influencing 
the field when it premiered in 1995 according to the background information petitioner. Rather, 
she joined a "clone" troupe, "Riverdance: The Show" in 1997, after an international 
sensation. While both troupes are viewed as equally talented, with 
the "Riverdance: The Show" cast is breaking new ground in the 
We note that the record 'contradicts one of counsel's assertions regarding e petitioner's distinction. 
Specifically, counsel asserts: 
Both the Culguy Herald and the Edmonton Journal, featured [the peti in an article 
which discussed the tremendous success of the show and how her role 
from night to night, because she is one of only two dancers trained for 
number." 
The actual quote in both articles, both identical and written by Alison Mayes of the algary Herald states: 
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[The petitioner's] Riverdance roles vary from night to night, since two da ers are trained for 
every "spot" in every number. 
Thus, it is clear that every role has two dancers who are prepared to perform that not that two dancers are 
prepared to perform every role as stated by counsel. The article does not state or that it is atypical for the 
petitioner to be trained in several roles as each role must have two dancers to perform that role. 
Conceivably, all dancers are trained in multiple roles, especially given the that injuries 
frequently fare up, up to four dancers have been unable to dance at one 
you're slightly injured, they don't put you on for risk of further injury." 
Peter Smith, Vice President of the Irish Dancing Commission, asserts that the "was one of only two 
female dancers given full contracts with ['Riverdance.']" Mr. moes how he has first hand 
knowledge of this fact and the references associated with "Riverdance" do this assertion. = 
the casting director for "we immediately 
contract for the new into the cast 
were not offered similar 
information in the record. In an interview in 
petitioner's "Riverdance" audition: I 
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She wasn't sent home with good news - in fact, she had no idea how well sh did at all. 
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"They didn't tell us anything (at the audition)," [the petitioner] said. 'the ix of us were in the 
final line-up dancing our faces off, and that was it.'' 
"They just told us they'd be in touch." 
It wasn't until [the petitioner] heard at other competitions throughout the ye r that she had been 
one of three Canadians to be chosen for the troupe she auditioned for. 
founder of the Comerford School of Irish Dance, asserts th t the petitioner was made 
"assistant Dance Director for Riverdance, a position which was only ever given to a erson from Ireland." Once 
again, Mr. foes not explain how he has first hand knowledge of this p sition and Mr. 
does not con inn this assertion. Rather, Mr. asserts that the petitio 1 er "was so 
company that she was asked to do an administrative secondment at the Riverdance in Dublin. She 
worked at the office there for 4 months in 1999 and co-ordinated the Irish 
companies and also a promotional event team, over 150 dancers in total.'' 
and not based on the petitioner's abilities as a dancer. 
In response to the director's request for additional evidence, counsel distinction 
within the troupe is evident from her salary. Counsel relies on a letter from Contracts Manager 
for the producers of "Riverdance: The Show." ~r states: 
To the best of my knowledge, an average Irish Dancer in the entertainm nt industry would 
normally earn a fee of approximately US$500.00 per performance wee . However, [the 
petitioner] was paid US$755.00 per week to perform with Riverdance - Th Show as Abhann 
Productions was very keen to retain the services of a dancer of [the petition r's] abilities on an 
ongoing basis. 
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That the petitioner earns more than the average Irish dancer in the industry is no 
letter does not establish the significance of the petitioner's role within the troupe. 
October 2001 contract indicates that her wages were $508 per performance wee e first year, $635 per 
performance week after one continuous year, and would only reach $755 per ante week after the 
provision of services for three continuous years. Thus, the petitioner's wages a d on her number of 
years of experience rather than unique talent. As stated in Matter of New York D 
222, the number of years of experience is simply one criteria for aliens of Because 
exceptional ability, by itself, does not justify a waiver of the job offertlabor certi 
hinging on the degree of experience required for the profession, while relevant, itive to the matter 
at hand. Id. 
The media coverage of the petitioner is local to her place of residence and only siniles her out as a Canadian 
selected to perform with "Riverdance." They do not distinguish her a, , y,...,,.,.. 
troupe. We note that the documentary appears to have been created hv a <l~h<irliarv 
of the company that produces "Riverdance: The Show' 
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Manager of asserts that the documentary only aired "on ocal programming." While 
the documentary follows the experience of petitioner and a fellow Canadian with I "Riverdance: The Show," it 
does not suggest that the petitioner's dance has been particularly influential in the w rld of Irish dance. 
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As the evidence discussed is not persuasive evidence distinguishing the petitioner m the members of the three 
touring Riverdance troupes, the remaining letters providing general praise the petitioner's talent are 
insufficient. On appeal, the petitioner merely resubmits documents already part record of proceedings and 
considered above. 
As is clear from a plain reading of the statute, it was not the intent of Congress t every person qualified to 
engage in a profession in the United States should be exempt from the of a job offer based on 
national interest. Likewise, it does not appear to have been the intent to grant national interest 
waivers on the basis of the overall importance of a given profession, merits of the individual 
alien. On the basis of the evidence submitted, the petitioner has not of the requirement 
of an approved labor certification will be in the national interest of 
The burden of proof in these proceedings rests solely with the petitioner. Secti 291 of the Act, 8 U.S.C. 
5 136 1 . The petitioner has not sustained that burden. 
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This denial is without prejudice to the filing of a new petition by a United States accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting 
ORDER: The appeal is dismissed.