dismissed EB-2 NIW Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 27, 2024 In Re: 33349581 
Appeal of Texas Service Center Decision 
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 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. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish eligibility for the requested EB-2 immigrant classification. The matter is now before us on 
appeal pursuant to 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 Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
The Director concluded the evidence did not establish the Petitioner met any of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) to show he is an individual of exceptional ability. On appeal, the 
Petitioner submits a lengthy brief largely restating the same arguments and evidence already on 
record. 1 And though he argues that "crucial aspects of [his] petition" were misrepresented and that 
"it is clear that [the Director] was completely biased and already intended to deny [his] request," he 
does not point to specific examples of where or how the Director misrepresented evidence or showed 
bias in his case. 
Upon review of the entire record, we adopt and affirm the Director's decision as it relates to the 
following criteria: an official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability; evidence in the form ofletter(s) from current or former employer(s) 
showing that the individual has at least ten years of full-time experience in the occupation for which 
he is being sought; evidence that the individual has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; evidence of membership in professional 
associations; and evidence of recognition for achievements and significant contributions to the 
1 We acknowledge the large number of previously submitted documents attached to the Petitioner's appellate brief. 
industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), (B), (D)-(F). See Matter of Burbano, 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). We, therefore, agree with the Director's ultimate conclusion that the 
Petitioner has not met the requirements for the underlying EB-2 classification. 2 
The Petitioner's arguments on appeal are insufficient and do not overcome the Director's conclusions. 
The Petitioner argues that he submitted sufficient evidence to meet the academic record criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(A) and the professional membership criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(E). However, with regard to both of these criteria, he relies, in part, on his 
descriptions of these organizations in his Request for Evidence response letter to show that the 
organization issuing his course completion certificates is an institution of learning and that the I 
is a professional association. 
However, he submits no corroborating evidence to support these claims or otherwise address the 
Director's concerns. The Petitioner's bare assertions alone are insufficient to show he meets these 
criteria. He must support his claims with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
In arguing that ____ is a professional association, the Petitioner urges that 8 C.F.R. 
§ 204.5(k)(2) "must be interpreted considering the diversity and specificities of professions, including 
those in the field of arts, such as music, which do not necessarily require a bachelor's degree for 
recognition of excellence and exceptional ability." However, this goes against the plain language of 
the regulation. 8 C.F.R. § 204.5(k)(2) defines "profession" 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 into the occupation." The Petitioner 
has cited no authority to support his proposed interpretation, and we will not read such an exception 
into the regulation's plain language. For these reasons, we agree with the Director that the Petitioner 
did not submit adequate evidence to demonstrate he meets the academic record or professional 
membership criterion. 
The Petitioner also argues that he demonstrated at least ten years of foll-time experience in the relevant 
occupation to meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). While he has addressed the Director's 
concerns related to his periods of overlapping employment, the Petitioner's updated employer letters 
do not contain sufficient detail about his duties and responsibilities to demonstrate that he has at least 
ten years of foll-time experience in the relevant occupation proposed here-operating a company 
conducting music workshops for children and adolescents. The letters are not sufficient to overcome 
the Director's concerns. 
2 The Petitioner should not construe this to mean we disagree with the Director's ultimate determination that the Petitioner 
does not meet the criterion to show a license to practice the profession or certification for a particular profession or 
occupation at 8 C.F.R. § § 204.5(k)(3)(ii)(C). 
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I 
As for the criteria related to salary at 8 C.F.R. § 204.5(k)(3)(ii)(D) and recognition for achievements 
and significant contributions to the industry or field at 8 C.F.R. § 204.5(k)(3)(ii)(F), the Petitioner 
advances the same arguments that were considered and rejected by the Director below. The Petitioner 
does not offer any new arguments contesting the Director's findings and, upon our review, we are not 
persuaded of any error in the Director's determinations that the Petitioner did not satisfy these criteria. 
Because the Petitioner did not establish the threshold requirement of eligibility for the EB-2 
classification, the Director did not reach the issue of the Petitioner's eligibility for a national interest 
waiver under the Dhanasar framework. We agree with the Director's decision that the Petitioner has 
not established he satisfies the regulatory requirements for classification as an individual of 
exceptional ability. Since this issue is dispositive of the case, we decline to reach and hereby reserve 
the Petitioner's appellate arguments regarding his eligibility for a discretionary waiver under the 
Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule 
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 D-L-S-, 28 I&N Dec. 568, 577 n.10 (BIA 2022) 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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