dismissed EB-2 NIW Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 25672675 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 13, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a musician, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
classification. See 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 record did not establish 
that the Petitioner was a member of the professions holding an advanced degree . Further , the Director 
determined that the Petitioner did not demonstrate that his proposed endeavor was of national 
importance, he was well positioned to advance his endeavor, or that it would be beneficial for the 
United States to waive the requirements of a job offer and a labor certification . 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, 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 . An advanced degree is any United States 
academic or professional degree or a foreign equivalent degree above that of a bachelor's degree . A 
United States bachelor's degree or foreign equivalent degree followed by five years of progressive 
experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
Profession is defined as of the occupations listed in section 10l(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. 1 8 C.F.R. § 204.5(k)(3). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 4, grant a national interest waiver if 
the petitioner demonstrates that: 
• 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. 
II. ADVANCED DEGREE AND EXCEPTIONAL ABILITY 
In support of the petition, the Petitioner stated that he was eligible for EB-2 classification as a "member 
of the professions holding an advanced degree" and that he was a "professional Musician registered in 
the Order of Musicians in Brazil." The Petitioner further indicated that he was trained and licensed as an 
aircraft pilot and submitted documentation reflecting that he had been trained at an aviation school in 
Brazil, while also noting that he was "now an inventor and entrepreneur." As a result, in the request for 
evidence (RFE), the Director stated the Petitioner did not provide sufficient evidence to establish that he 
was member of the professions holding an advanced degree. The Director requested that the Petitioner 
provide degrees or transcripts to demonstrate his education and, ifhe was relying on a bachelor's degree 
or foreign equivalent degree, additional evidence to establish that he had five years of post-baccalaureate 
experience in his specialty. 
1 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101 (a)(32) of the Act. 
2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 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). 
2 
In response, the Petitioner again stated that he qualified as a member of the professions holding an 
advanced degree, explaining that he "is a very experienced Musician, in addition to a former aircraft pilot, 
an inventor, and an entrepreneur." The Petitioner did not submit any evidence reflecting that he had 
earned a bachelor's, or other, degree. The Petitioner also stated that he was an entrepreneur and the chief 
executive officer of I responsible for his development project called I I 
The Petitioner asserted that I lwas a project to develop "tools of music theory study," or more 
specifically a tool combining elements of music with aviation calculation tools to assist musical student 
learning. 
The Director denied the petition stating that the Petitioner was ineligible as he did not demonstrate that 
he was a member of the professions holding an advanced degree. On appeal, the Petitioner asserts that in 
the RFE the Director did not address whether the Petitioner satisfied at least three of the six regulatory 
criteria to establish him as an individual with exceptional ability and did not offer him the opportunity to 
submit documentation to demonstrate this eligibility. However, the Petitioner's contention on appeal 
ignores its previous assertions related to his eligibility. For instance, as discussed, the Petitioner asserted 
in support of the petition that he was a member of the professions holding an advanced degree, and 
therefore, the Director requested in the RFE that he support this assertion with evidence. In response, the 
Petitioner again stated that he qualified as a member of the professions with an advanced degree. As 
such, we disagree with the Petitioner that the Director erred in not requesting evidence related to whether 
he qualified as an individual with exceptional ability. Regardless, we will now only analyze whether the 
Petitioner qualifies as an individual with exceptional ability, as he has now abandoned his claim that he 
qualified as a member of a professional with an advanced degree. See Sepulveda v. US. Att'y Gen., 
401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); see also, Hristov v. Roark, No. 09-CV-27312011, 2011 
WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
We reviewed the entirety of the record and have considered the Petitioner's eligibility as an individual of 
exceptional ability. On appeal, the Petitioner only asserts that he has met the three criteria addressed 
below. We conclude that the Petitioner has not satisfied at least three of the six criteria, and therefore, we 
need not reach a final merits determination and reserve it. 5 Accordingly, the Petitioner does not qualify 
as an individual of exceptional ability. While we may not discuss each piece of evidence individually, 
we have reviewed and considered each one. 
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. 
§ 204.5(k)(3)(ii)(C) 
The Petitioner provided evidence that he is a member of the Brazilian Musicians Association as of March 
2019. This membership document further indicated that the Petitioner specialized in the bassoon and the 
saxophone. The Petitioner also indicated that the Brazilian Musicians Association is "responsible for 
supervising professional activities in the Music sector to ensure the quality of the service and standards 
are met," that the association "attests that the Musician is qualified to carry out their duties with quality," 
and that this identity card "allows for more efficient inspection" and defends against "illegal services." 
5 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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 of L-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). 
3 
However, this evidence is insufficient to establish that the Petitioner's membership in the Brazilian 
Musicians Association is a license to practice his profession or certification for a particular profession or 
occupation. First, the document itself is identified as an "identity card," and there is little indication on 
its face that it could be deemed a license or certification in a profession, beyond noting that the Petitioner 
specializes in the bassoon, saxophone, and "popular" music. The Petitioner asserts that this identity card 
indicates that the Brazilian Musicians Association attests that he is qualified to carry out his work as a 
bassoonist and saxophonist, but there is no discussion of such an attestation or certification, nor an 
explanation as to how he received his membership card. The Petitioner has provided insufficient evidence 
to establish that his membership in the Brazilian Musicians Association represents a license or 
certification to practice a particular profession or occupation, for instance, by demonstrating the 
requirements of said licensure or certification, if any. 
Further, the Petitioner stated his intent to act as an entrepreneur launching a new product meant to assist 
students in learning music. For instance, as noted, the Petitioner stated in response to the RFE that he 
was an entrepreneur and the chief executive officer of I I responsible for his 
development project calledl I or more specifically a tool combining elements of music with 
aviation calculation tools to assist musical student learning. The Petitioner has not provided evidence 
demonstrating that a license or certification is required to create a new music educational tool and 
introduce it into the marketplace. The Petitioner appears to have performed this endeavor without 
licensure or certification as a musician. It is not apparent whether a professional license or certificate to 
practice as a musician would be sufficiently related to the claimed area of exceptional ability. Therefore, 
we cannot conclude that the Petitioner has a license to practice the profession or certification for a 
particular profession. In fact, it is not sufficiently clear within what profession the Petitioner's proposed 
endeavor would fall. Accordingly, the record is insufficient to establish the Petitioner's eligibility under 
this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
For this criterion, the Petitioner points to his membership in the Brazilian Musicians Association. 
However, the Petitioner did not indicate how the Brazilian Musicians Association is a "professional 
association." For instance, a profession is defined as "one of the occupations listed in section 
10l(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 in the occupation." 8 C.F.R. § 204.5(k)(2). 
The Petitioner does not describe how the Brazilian Musicians Association qualifies under this criteria 
by sufficiently describing how it qualifies as a professional association. Accordingly, the record is 
insufficient to establish eligibility under this criterion. 
Evidence of recognition for achievements and significant contributions to the industry or field by peers, 
governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F) 
The record includes letters of recommendation from the Petitioner's colleagues, his membership 
certificate in the Brazilian Musicians Association, a pilot's license in Brazil, and evidence of his 
completion of pilot training in Brazil. As previously stated, while we may not discuss each piece of 
evidence individually, we have reviewed and considered each one. 
4 
On appeal, the Petitioner points to letters of recommendation from his colleagues indicating that he is "an 
inventor that has revolutionized the field." He further emphasizes his participation in several workshops 
and lectures as a speaker throughout 201 7 and 2018. The Petitioner asserts the evidence reflects that "he 
has a record of notable success" based on his "leading role in defining projects, especially those related 
to "music and invention." Although the letters of support indicate that the Petitioner's professional 
acquaintances hold him in high regard personally and professionally and that they believe in the potential 
for success of his proposed music education tool, this evidence does not reflect that he has received 
recognition for achievements and significant contributions to his industry or field. To illustrate, in one 
support letter ______ a professor and orchestra musician from Brazil, expressed support for 
the value of the Petitioner's proposed music education tool, noting that it could help students develop a 
greater interest in music. However, the letter does not indicate that the Petitioner's music education tool 
has been used in the marketplace by students and that it had an actual impact on the field of music 
education. Likewise, another similar letter from I I also a professor of music in Brazil, 
discusses the potential of the Petitioner's proposed music education tool. However, again, the letter does 
not indicate that the Petitioner's proposed music education tool could be categorized as an achievement 
or significant contribution to music education. Therefore, the provided recommendation letters do not 
demonstrate that the Petitioner has received recognition for achievements and/or that he has made 
significant contributions to his field. 
The Petitioner also submitted an expert opinion letter from I a stated "music 
educator and multi-instrumentalist," who states that she works as a music teacher in Massachusetts. 
I I also attested to the fact that the Petitioner's proposed music tool could produce "greater 
understanding of [music] content," yet there is little evidence from this letter that his tool has been used 
by students and had an actual impact on the field of music education. As a matter of discretion, we may 
use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int 'l, Inc., 19 I&N Dec. 
791, 795 (Comm'r 1988). However, we will reject an opinion or give it less weight if it is not in accord 
with other information in the record or if it is in any way questionable. Id. We are ultimately responsible 
for making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id. Here, the letter from 
I does not sufficiently address the Petitioner's eligibility for this criterion, namely, the 
recognition he has received for his achievements and/or the significant contributions he has made to his 
field. Therefore, it has little probative value under this criterion. 
Further, the Petitioner points to his participation in lectures and workshops related to music education. 
However, the Petitioner's participation in these lectures and workshops reflect his promotion of his 
proposed music education tool, and do not reflect any achievements or recognition in his field. Otherwise, 
the Petitioner provides insufficient evidence on appeal to explain how his participation in lectures and 
workshops demonstrate his recognition for achievements and significant contributions to the field. 
Based on the evidence provided, we conclude that the Petitioner has not established how his 
accomplishments extend beyond him performing as a musician in Brazil and him developing a proposed 
music education tool. While the Petitioner's idea for a new music education tool may have potential, his 
performance does not represent achievements and significant contributions to his field. Accordingly, the 
evidence does not establish that the Petitioner satisfied this criterion. 
5 
Summary 
The record does not support a finding that the Petitioner meets at least three of the six regulatory criteria 
for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). The Petitioner therefore has not established his 
eligibility as an individual of exceptional ability under section 203(b )(2)(A) of the Act. As previously 
outlined, the Petitioner must show that he either is an advanced degree professional or that he possesses 
exceptional ability before we reach the question of the national interest waiver. We conclude that the 
evidence does not establish that the Petitioner meets the regulatory criteria for classification as an 
individual of exceptional ability or that he is a member of the professions holding an advanced degree. It 
is the Petitioner's burden to establish eligibility for the immigration benefit sought. Matter of Chawathe, 
25 I&N Dec. at 375-76. As the Petitioner has not established eligibility for the underlying immigrant 
classification, the issue of the national interest waiver is moot. The waiver is available only to foreign 
workers who otherwise qualify for classification under section 203(b)(2)(A) of the Act. 
III. CONCLUSION 
The Petitioner has not established that he is eligible for the underlying classification as an advanced 
degree professional or as an individual of exceptional ability. Therefore, further analysis of his 
eligibility under the framework outlined in Dhanasar would serve no meaningful purpose. 
Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's remaining arguments concerning his eligibility under the 
Dhanasar framework. See INS v. Bagamasbad, 429 U.S. at 25; see also Matter of L-A-C-, 26 I&N 
Dec. at 526 n.7. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
6