dismissed EB-2 NIW Case: Music

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26534953 Date: MAY 4, 2023 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a cellist, seeks classification as a member of the professions holding an advanced 
degree or as an individual of exceptional ability in the sciences, arts or business. See 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. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor 
certification , when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the 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 of Chawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . We 
review the questions in this matter de nova . Matter ofChristo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 
2015). Upon de nova review, we will dismiss the appeal. 
After a petitioner first shows eligibility for the underlying EB-2 visa classification, they must then 
demonstrate they merit 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, 8 89 (AAO 2016) provides 
that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , grant a national 
interest waiver if the petitioner shows 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 . 
The Director reviewed and analyzed the Petitioner's claims under the three prongs of Dhanasar and 
detennined that he only established the substantial merit of his proposed endeavor. On appeal, the 
Petitioner asserts that he had submitted enough evidence to establish eligibility, and that, by failing to 
give that evidence sufficient weight, the Director imposed an improperly strict standard of proof. 
We adopt and affirm the Director's decision with respect to the national interest waiver. 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 
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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 Petitioner initially described his proposed endeavor as continuing to perform with the 
as he has done since 2015. The Petitioner stated that he also intends to teach music, "both 
on the private level as well as within an institution as applied faculty," and "to pursue the creation of 
a cello quartet ... , composing and performing original music with an eye towards blending the folk 
music of [Uzbekistan] with American genres such as country, jazz, and ragtime." In response to a 
request for evidence (RFE), the Petitioner stated for the first time that he has "developed a model of 
improvisation" that "consists ofrigorous combination of improvisation techniques from Western and 
Uzbek music performance traditions." The Petitioner's discussion of a new hybrid improvisation 
model appears to be a material change to his proposed endeavor, rather than a clarification of the 
proposed endeavor as originally described. His initial submission, which included several letters from 
other musicians, did not include any mention of this new model. A petitioner must meet all eligibility 
requirements at the time of filing the petition and continue to meet those requirements throughout the 
adjudication of the petition. See 8 C.F.R. § 103.2(b )(1 ). A petitioner may not make material changes 
to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
On appeal, the Petitioner asserts that he had cited "probative research" to establish the importance of 
his proposed endeavor. The only evidence that the Petitioner identifies on appeal relating to this 
argument is a five-year Strategic Plan from the National Endowment for the Arts. That document, by 
design, concerns the overall, collective imp01iance of the arts. It contains no specific mention or 
discussion ofthe Petitioner's proposed endeavor, either as initially described or the substantial revision 
submitted after the RFE. 
The Petitioner asserts that the Director should have given more weight to evidence that the Petitioner 
"has already come so far in advanc[ing]" his proposed endeavor. The Petitioner points to his prior 
statements, degrees, awards, letters from others, and membership in a local chapter of the American 
Federation of Musicians, and asserts that he has established that "he is a prestigious cellist." The 
record attests to the Petitioner's training and experience, but the proposed endeavor as described 
involves more than playing cello. Significantly, the Petitioner initially indicated that he intends to 
teach "within an institution as applied faculty." The Petitioner did not submit enough information and 
evidence to show that he is well-positioned for a faculty job. The Petitioner did not specify the type 
of institution where he seeks to teach, or establish that he holds the necessary credentials and training 
to qualify for such a position. The Petitioner also did not establish what progress, if any, he had made 
toward establishing the quartet he initially described. 
The Director concluded that the Petitioner had not established that, on balance, the United States would 
benefit from waiving the statutory job offer requirement. The Petitioner responds with two somewhat 
contradictory arguments - first, that he works in a shortage occupation designated under Schedule 
A, Group II by the U.S. Department of Labor (DOL), and second, that his skills exceed those of U.S. 
workers, as shown by successfully auditioning for thel Iagainst 40 other musicians. 
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The requirements for a petition under Schedule A, Group II, are different from those for a national 
interest waiver petition. The two types of immigration benefit are mutually exclusive. Schedule A 
determination is not a national interest waiver of the job offer requirement; rather, it incorporates a job 
offer requirement, albeit one that does not involve applying for an individual labor certification from 
DOL. The claim that the Petitioner would have qualified under Schedule A does not imply eligibility 
for the different benefit he seeks in this proceeding. The Petitioner's claim is not only speculative, but 
it relies upon a misreading of the regulations. The Petitioner relies on the regulatory criteria for 
"exceptional ability" at 8 C.F.R. § 204.5(k)(3)(ii). But eligibility under Schedule A, Group II rests on 
a different set of criteria, found in DOL regulations at 20 C.F.R. § 656.15( d)(2), involving factors such 
as "widespread acclaim and international recognition." The Petitioner's evidence shows considerably 
more limited recognition, largely confined to parts of Florida. Before coming to the United States, the 
Petitioner won several awards as a child and as a student, but has not shown that these awards are 
available to established musicians who have completed their training. 
Apart from the issue of the national interest waiver, the Director concluded that the Beneficiary 
qualifies for classification as a member of the professions holding an advanced degree (specifically a 
master's degree froml !University in Florida). A profession requires at least a bachelor's degree 
for entry into the occupation. See 8 C.F.R. § 204.5(k)(2). The record does not establish that the 
Petitioner's occupation requires such a degree. Rather, the Director cited the DOL's Occupational 
Outlook Handbook, indicating: "There are no postsecondary education requirements for musicians or 
singers interested in perfonning popular music. However, many performers of classical music and 
opera have at least a bachelor's degree." A tendency of"many performers" to hold bachelor's degrees 
is not the same as a requirement for entry into the occupation. The Petitioner did not establish that his 
employer requires that its musicians hold bachelor's degrees. Fmihennore, significant elements of the 
Petitioner's proposed endeavor involve performances outside of his work with the I I 
The Petitioner did not explain how, or establish that, such work requires at least a bachelor's degree. 
A faculty position at a teaching institution may qualify as a profession, but when the Petitioner revised 
his proposed endeavor in response to the RFE, his "rigorous plan to progress in [the] endeavor" did 
not include any discussion of plans for a faculty position. 
The Petitioner also initially indicated that he qualifies, in the alternative, for classification as an 
individual of exceptional ability, but although he cites the regulations relating to exceptional ability 
on appeal, he did not pursue that claim with further evidence after the Director issued the RFE. 
The record is not sufficiently developed to establish that the Beneficiary qualifies for classification 
under section 203(b)(2) of the Act, either as a member of the professions holding an advanced degree 
or as an individual of exceptional ability in the arts. But because our conclusions regarding the national 
interest waiver are sufficient to determine the outcome of the appeal, we reserve the separate issue of 
the Petitioner's eligibility for the underlying classification. See INS v. Bagamasbad, 429 U.S. 24, 25-
26 (1976) (stating that, like courts, federal agencies are not generally required to make findings and 
decisions 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). 
ORDER: The appeal is dismissed. 
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