dismissed EB-2 NIW Case: Gospel Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 28, 2023 In Re: 28467023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a Brazilian gospel singer, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability in the sciences, arts, or business. 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1 l 53(b )(2)(B)(i). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish eligibility for the EB-2 classification or for a national interest waiver under the Dhanasar 
framework. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
On the Form I-290B, Notice of Appeal or Motion, the Petitioner indicated a brief and/or additional 
evidence would be submitted to the AAO within 30 calendar days of filing the appeal but to date, we 
have not received a brief. The Petitioner submits a cover letter that briefly discusses the issues that 
will further be discussed in a subsequent brief. The Petitioner does not dispute the Director's 
determination that she did not establish eligibility for the EB-2 classification as an advanced degree 
professional. 
The Director also determined the Petitioner did not qualify as an individual of exceptional ability. 
Specifically, the Director concluded the evidence did not establish the Petitioner met at least three of 
the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). We adopt and affirm the Director's 
decision regarding the specific issue of eligibility for the EB-2 classification. See Matter ofBurbano, 
20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting 
that the practice of adopting and affirming the decision below has been "universally accepted by every 
other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining 
eight circuit courts in holding that appellate adjudicators may adopt and affirm the decision below as 
long as they give "individualized consideration" to the case). 
The Director concluded the Petitioner did not demonstrate she has at least ten years of full-time 
experience in the relevant occupation pursuant to 8 C.F.R. § 204.5(k)(3)(ii)(F). In the cover letter, the 
Petitioner reiterates her earlier assertions that the supporting letters, when considered collectively, 
provided sufficient evidence of at least ten years of experience in gospel singing. The Petitioner also 
indicates for the first time that the evidence constitutes comparable evidence, but she does not provide 
sufficient explanation of why the evidence should be considered comparable. In addition, the submitted 
letters provide a general description of the Petitioner's singing career in Brazil to include her 
performances in conferences, conventions, events, and songs played on the radio and television but does 
not contain specific detail to establish the Petitioner has full-time experience in the occupation required 
by 8 C.F.R. § 204.5(g)(l ). Moreover, the Petitioner indicated in the record that she served as an 
auxiliary pastor with the International Church of thd lin Brazil from 2000 to 2018 and 
therefore, it is not clear how she worked as a full-time gospel singer during this time if she was also 
working as an auxiliary pastor, as claimed. The Petitioner did not provide any documentation or evidence 
to overcome the Director's concerns. Accordingly, we conclude the evidence is insufficient to establish 
eligibility under the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The Petitioner also contends monetary compensation is not the only form of remuneration for services, 
and that she instead may also include the honor and ability to headline major Christian gospel events 
across Brazil and "spiritual rewards." There is no evidence in the record which would permit us to 
evaluate the duties a gospel singer of exceptional ability would perform for the salary and their 
remuneration as a point of comparison. Moreover, the Petitioner did not provide any income figures 
for any of her work or recordings and failed to provide evidence showing how her spiritual rewards 
qualify under this criterion. We agree with the Director that the Petitioner has not met the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(D) because based on the information from the record we cannot evaluate 
whether the Petitioner's salary or remuneration demonstrated her exceptional ability. 
As noted by the Director, the letters of support provide general discussion of the Petitioner's career 
successes and skills and professional relationships rather than provide specific examples to establish 
her eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(F). The evidence suggests her colleagues respect and 
appreciate her; however, it does not indicate the Petitioner has been recognized for achievements and 
significant contributions to the gospel music industry as a whole. The Petitioner states she will submit 
additional information to show her contributions are significant for the field of Brazilian gospel music 
and for specific religious organizations; however, the Petitioner did not submit any additional evidence 
to overcome the Director's concerns. 
The evidence does not establish the Petitioner met at least three of the six regulatory criteria for 
exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii) at the time of filing. Therefore, the Petitioner has not 
established eligibility as an individual of exceptional ability under section 203(b )(2)(A) of the Act. A 
final merits determination is not required. As the Petitioner has not established the threshold 
requirement of eligibility for the EB-2 classification, analyzing her eligibility for a national interest 
waiver under the Dhanasar framework is unnecessary. Because the identified reasons for dismissal 
are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the arguments 
concerning eligibility under the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that "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 ofL-A-C-, 26 I&N Dec. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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Nevertheless, we reviewed the evidence in its totality and agree with the Director's conclusion that 
the record does not establish the Petitioner's eligibility for a national interest waiver. 
The Petitioner has not demonstrated that she qualifies as a member ofthe professions holding an advanced 
degree or 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. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
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