dismissed EB-2 NIW Case: Language Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
In Re : 27439991 Date : JUN. 14, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a language and literary musicalization professor, seeks second preference immigrant 
classification as a member of the professions holding an advanced degree or as an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner had not 
established eligibility for a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. 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. 
I. LAW 
To establish eligibility for a national interest waiver, petitioners must 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 . Section 203(b )(2)(B)(i) of the Act. In addition, 
petitioners must show the merit of a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1, grant 
a national interest waiver if: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance , waiving the job offer requirement would benefit the United States. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
II. ANALYSIS 
As it relates to the national interest waiver, the first prong relates to substantial merit and national 
importance of the specific proposed endeavor. 2 Dhanasar, 26 I&N Dec. at 889. At initial filing, the 
accompanying cover letter stated the Petitioner "endeavors to work as a Professor of Language and 
Literary Musicalization in the United States, using an innovative program he has created to teach 
Portuguese Language through songs and poetry." In addition, the Petitioner submitted a statement 
indicating: 
My main objective as an educator and the creator of I I is to spread 
Portuguese language and culture in a true, light, didactic way to that it may be used for 
the benefit of each student, from those needing to reconcile with their Brazilian roots 
to those who want to be comfortable making business transactions with Portuguese 
speakers. This is why Schools and NGOs are very receptive. There is significant 
interest coming from an increasing number of Brazilian immigrants who actively 
contribute to the American economy. 
Beyond working for the I I School Board, I want to expand my programs to 
improve the American classroom and raise awareness of this teaching style through 
live performances for the whole family. Moving forward, I want to show the United 
States the benefits of teaching language which is often regarded as a melting pot of 
different cultures and nationalities. I am already working on music to help immigrants 
build a relationship with the English language, so that we can, in addition to promoting 
Brazilian culture, create songs that help them assimilate to the American culture. The 
program I have created has the ability to enhance interpersonal relationships, which 
inspires me as an educator to disseminate this new teaching style to improve the lives 
of as many people as possible. 
In response to the Director's request for evidence (RFE), the Petitioner's cover letter stated: 
[The Petitioner] has created his own employment opportunity in the United States as the 
Language and Literary Musicalization Teacher of his Florida-based companyJ I 
._______ __, contributing to the education system's strategies to allow students to 
make up their interrupting education by increasing the amount and quality ofleaming time 
through the online and physical tutoring lessons, workshops and showcases he offers 
throughout the United States. 
2 The Director informed the Petitioner in the request for evidence (RFE) that he qualified for the underlying EB-2 visa 
classification as a member of the professions holding an advanced degree. 
2 
Moreover, the Petitioner provided a "Statement Professional Declaration" indicating: 
In 2020, I created by Florida-based enterprise~--------------~
c::=J, in the United States to contribute to the U.S. Education System through Literature 
and Music that enhances language skills and literacy, employing my Literary 
Musicalization methodology and disseminating my program! Iat bilingual 
schools, considering that Portuguese is the third most widely spoken language in Florida, 
after English and Spanish. 
In addition, the Petitioner submitted a business plan for~------~ dated July 2022, reflecting 
the "[ c ]ompany will operate a Portuguese language teaching school that will initially offer Portuguese 
learning courses through music through both in-person and online classes." 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit but not 
its national importance. On appeal, the Petitioner maintains: 
[He] has offered far more compelling evidence that what many other Petitioners of EB-
2 National Interest Waiver Visas are able to provide, many only capable of offering 
plans for the future, whereas he has provided proof of his current position and potential 
prospective impact to illustrate his capacity in which he intends to work in the United 
States. 
At the outset, the Petitioner did not cite to any corroborating evidence to support his appellate 
assertion, nor did the Petitioner explain how he is aware of the capability of other petitioners to only 
offer plans for the future. Moreover, as indicated above, the Petitioner initially claimed "to expand 
[his] programs to improve the American classroom and raise awareness of this teaching style through 
live performances for the whole family" and "to disseminate this new teaching style to improve 
lives of as manl people as possible" without any mention of owning and operating I 
the 
I I In fact, the Petitioner developed the business plan for the company after the Director 
issued the RFE. Although the record shows the Petitioner filed the articles of organization with the 
Florida Secretary of State approximately three weeks prior to the filinf. of the petition, the Petitioner 
did not make a claim to own and operate I as part of his initial hroposed 
endeavor. Rather, the Petitioner discussed the teaching and promoting of his !program 
rather the owning and operating his I Icompany, a materially changed 
proposed endeavor. The Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time filing and continuing through adjudication. See 8 C.F.R. 
§ 103 .2(b )(1 ). Further, a petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision farther 
provides, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981 ), that USCIS cannot "consider facts 
that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we 
I 
will not 
consider the Petitioner's materially changed proposed endeavor of opening and operating I 
I I 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although the Petitioner 
3 
references his submissions of articles regarding the benefits of music, the importance of education, 
and the promotion of literacy through music, including an expert opinion letter from I II I the Petitioner must demonstrate the national importance of his specific, proposed endeavor of 
providing his particular services in teaching his music literacy program rather than the importance of 
music and education. In Dhanasar, we 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. While the Petitioner also contends the shortages of teachers, such 
occupational deficiencies are directly addressed by the U.S. Department of Labor through the labor 
certification process and are not a basis for national importance under the first prong of the Dhanasar 
framework. 3 
Moreover, the Petitioner argues that "[b ]y teaching American children Portuguese as a second 
language, he is enriching their cultural knowledge and opening up better professional opportunities 
from them in the future." 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. Dhanasar, 26 I&N Dec. at 889. Here, the Petitioner did not demonstrate how teaching his 
music literacy program to his students largely influences the field and rises to the level of national 
importance. In Dhanasar, we determined 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. 
Likewise, the record does not show through supporting documentation how his program and services 
stand to sufficiently extend beyond his prospective students or schools that may utilize his services, to 
impact the industry or the U.S. economy more broadly at a level commensurate with national 
importance. 
Furthermore, the Petitioner did not demonstrate how his initial proposed endeavor has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for our 
nation. Without evidence regarding any projected U.S. economic impact or job creation attributable 
to his music program, the record does not show any benefits to the U.S. regional or national economy 
resulting from his music literacy program would reach the level of "substantial positive economic 
effects" contemplated by Dhanasar. Id. at 890. 
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. 4 
3 Similarly,! lmakes broad claims regarding the education sector in the United States, foreign language workers, 
national initiatives, societal welfare impacts, and labor sh01tages without articulating how the Petitioner's specific, 
proposed endeavor has national or global implications rather than limited to his students who experience his music literacy 
program. 
4 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516. 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility 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. 
5