dismissed EB-2 NIW Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR 4, 2024 In Re: 28809986 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a violinist and music instructor, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability in the arts, 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 that the record did not 
establish that the Petitioner qualifies for EB-2 classification as an alien of exceptional ability or that 
the Petitioner was eligible for the requested national interest waiver. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&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. Section 203(b )(2)(B)(i) of the Act. 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). 
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). 1 Meeting 
1 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). 
at least three criteria, however, does not, in and of itself: establish eligibility for this classification. 2 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. 3 
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 discretion4, 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. ANALYSIS 
The Petitioner has not asserted that she is a member of the professions holding an advance degree, nor 
does the record contain evidence that the Petitioner previously earned a U.S. baccalaureate degree or 
its foreign equivalent. Further, she has not established that she meets the definition of a professional. 
See 8 C.F.R. § 204.5(k)(2) ( defining a "profession" as one of the occupations listed in section 
101(a)(32) of the Act or one whose minimum requirement for entry is a U.S. baccalaureate degree or 
its foreign equivalent.) Therefore, to qualify for EB-2 immigrant classification, the Petitioner must 
establish she is an individual with exceptional ability in the sciences, arts, or business. 
A. Individual of Exceptional Ability 
The Director concluded that the Petitioner was not an individual of exceptional ability as she did not 
meet at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Upon de novo review of the 
record, we agree with the Director's ultimate conclusion. While we do not discuss each piece of 
evidence contained in the record individually, we have reviewed and considered each one. 5 
2 USCIS has previously confirmed the applicability of this two-pait adjudicative approach in the context of aliens of 
exceptional ability. 6 USC1S Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 See Kazarian v. USC1S, 596 F.3d 1115 (9th Cir. 2010) ( discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see 
generally 6 USCTS Policy Manual, supra, at F.5(B)(2). 
4 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
5 Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984) ("[The Board oflmmigration Appeals] has no duty to write 
an exegesis on every contention"). See also Ren v. USC1S, 60 F.4th 89, 97 (4th Cir. 2023) ("[S]o long as [USCIS] has 
given reasoned consideration to the petition, and made adequate findings, we will not require that it address specifically 
each claim the petitioner made or each piece of evidence the petitioner presented." ( cleaned up)). 
2 
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The Director concluded without explanation that the record established the Petitioner met this 
criterion. We disagree. 
The Petitioner claims "more than 22 years of full-time professional career [sic] within the field of 
orchestral music working as a violinist, concertmaster, trainer and music professor." However, to 
satisfy the plain language of this criterion, the evidence must (1) be in the form ofletter(s), (2) be from 
current or former employer(s), and (3) establish at least ten years of full-time experience. Further, and 
as acknowledged by the Petitioner, such letters "shall include a specific description of the duties 
performed." 8 C.F.R. § 204.S(g)(l). Therefore, we will not consider evidence such as her curriculum 
vitae, concert programs, or counsel's statements. The unsubstantiated assertions of counsel do not 
constitute evidence. See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief: 
motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). 
Upon review of the record, the only document which is a letter from a current or former employer is 
from the I I6 Although it confirms her role as 
the Director of the I I from 2006 until 2018, it does not 
provide any description of her duties or indicate how many hours she worked per week. Without such 
critical information, we cannot conclude that the Petitioner has established at least ten years of full­
time experience and withdraw the Director's determination that the Petitioner meets this criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director concluded without explanation that the record established the Petitioner met this 
criterion. We disagree. 
To establish her membership in professional associations, the Petitioner provided evidence of 
membership in I I along with evidence of her participation in the and a 
letter from the founding director of the~------------~ a nonprofit organization 
in Florida dedicated to fostering social change and providing transformative experiences for children 
through music education. These organizations do not appear to be professional organizations. 
As previously explained, the regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as an 
occupation listed at section 10l(a)(32) of the Act, 8 U.S.C. §110l(a)(32)7, or an occupation whose 
minimum requirement for entry is a U.S. baccalaureate degree or its foreign equivalent. The record 
does not establish that the I I theI I or c=J restrict its membership to members 
of the professions, as defined in the regulation. In contrast, these organizations appear to be primarily 
focused on music performance, or music instruction which do not require a baccalaureate degree or 
6 While we acknowledge that the Petitioner also submitted a letter from the Acting Director of the.__ _____ __. 
~-----------------------~the letter only confirms she "studied at our 
institution [and] was a member of the Youth Orchestra ... from 1993 to 1998," without mention of employment. 
7 The occupations listed in this section are architects, engineers, lawyers, physicians, surgeons, and teachers in elementaiy 
or secondary schools, colleges, academies, or seminaries. 
3 
its foreign equivalent. Moreover, the letter from the founder of~ simply states that they are 
extending an offer to the Petitioner to serve in a teaching role, it does not establish her existing 
membership at the time of filing this petition. A petitioner must establish eligibility for the benefit 
they are seeking at the time the petition is filed. 8 C.F.R. § 103.2(b)(l); Matter ofKatigbak 14 I&N 
Dec. 45, 49 (Comm'r 1971). Therefore, the Petitioner has not demonstrated her membership in a 
professional association under this criterion, and we withdraw the Director's determination that the 
Petitioner meets this criterion. 
Evidence ofrecognition 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). 
To satisfy this criterion, the Petitioner submitted letters of support from leaders in the orchestral field, 
including founders and directors of organizations dedicated to music education, as well as music 
directors of national orchestras. We agree with the Director's conclusion that, while the letters provide 
recognition for the Petitioner's talent as a violinist and her passion for training the next generation of 
musicians, they do not establish that she has made significant contributions to the field. For example, 
R-C-, Music Director ofthel Icommends the Petitioner 
for her talent and expertise, noting that during her time as a staff conductor of the I I she 
"developed one of the children's orchestras of the I I into a highly integrated orchestra ... 
while developing her students confidence, discipline, and love for orchestra music," and also received 
support from the parents of her students and the local community. Likewise, R-B-, Orchestra 
Conductor and Violinist.__ _______ __, notes that the Petitioner "innovates with integral 
pedagogy that provides a bigger development in the technical, artistic, creative, spiritual and human 
subjects. She is committed to guiding her students to reach their maximum potential ... [ and] provides 
courses and training to teachers ... " While these letters praise the Petitioner's talent as a violinist and 
her dedication to her students, as well as confirming that she provides trainings to teachers, they do 
not establish that she has been acknowledged for significant contributions to the field. Therefore, the 
Petitioner has not demonstrated eligibility under this criterion. 
Comparable Evidence. 8 C.F.R. § 204.5(k)(3)(iii). 
The Petitioner asserts that the Director disregarded her submission of comparable evidence. However, 
the Director informed the Petitioner that to rely on comparable evidence, she must explain why a 
particular regulatory evidentiary criterion does not apply to her occupation and provide an explanation 
as to how the evidence submitted is comparable to that regulatory criterion. See, generally 6 USCIS 
Policy Manual F.5(B)(2). General assertions that any of the six objective criteria do not readily apply 
to her occupation are not sufficient. Id. Despite acknowledging this on appeal, the Petitioner still does 
not explain which, if any, of the three remaining criteria at 8 C.F.R. §§ 204.5(k)(3)(i)(A), (C), and 
(D) do not apply to her occupation, nor is it readily apparent. Where an individual is simply unable to 
meet or submit sufficient documentary evidence of at least three of these criteria, the plain language 
of the regulation at 8 C.F.R. § 204.5(k)(3)(iii) does not allow for the submission of comparable 
evidence. As the Petitioner has not attempted to demonstrate that any of the regulatory criteria at 
8 C.F.R. §§ 204.5(k)(3)(ii)(A), (C), and (D) do not readily apply to her occupation, she may not rely 
on comparable evidence to qualify for this immigrant classification. Further, we also note that the 
Petitioner asserts that the referenced documents are comparable evidence for criteria relating to 
4 
individuals of extraordinary ability at 8 C.F.R. § 204.5(h)(3), which is not the classification she is 
requesting. For all these reasons, we cannot consider the Petitioner's claims regarding comparable 
evidence. 
While we acknowledge the Petitioner has had a successful career as a violinist and music instructor, 
the record does not establish that she meets at least three of the evidentiary criteria at 8 C.F.R. 
§§ 204.5(k)(3)(ii)(A) through (F). Since the Petitioner did not satisfy the initial evidence 
requirements, we need not conduct a final merits analysis to determine whether the evidence in its 
totality shows that she is recognized as having a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). Nevertheless, we advise that 
we have reviewed the record in the aggregate and conclude the Petitioner has not established the 
recognition required for classification as an individual of exceptional ability. 
B. National Interest Waiver 
The remaining issue is whether the Petitioner has established that a waiver of the requirement of a job 
offer, and thus a labor certification, is in the national interest. Here, the Petitioner has not established 
eligibility for the underlying EB-2 immigrant classification. Since this issue is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the 
Petitioner's eligibility for a national interest waiver under the Dhanasar analytical framework. 
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 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where 
an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not established 
that she satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree or as an individual of exceptional ability. 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