dismissed EB-2 NIW Case: Music

(b)(6)
DATE: NOV 0 ~ 2014 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit-y 
U.S. Citi zenship and Immigrati on Services 
Administrative Appeals Offi ce (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-2908) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
www. uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us at the Administrative Appeals Office on appeal. We will dismiss 
the appeal. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts. The petitioner seeks 
employment as a violinist with the The petitioner asserts that 
an exemption from the requirement of a job offer, and thus of a labor certification, is in the national 
interest of the United States. The director found that the petitioner failed to establish that he qualifies 
for classification as an alien of exceptional ability in the arts, and failed to establish that an exemption 
from the requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a legal brief. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
I. Exceptional Ability 
a. Basic Standards 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
provides that the petitioner must submit evidence that qualifies under at least three of the following 
categories: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability 
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(B) Evidence in the form of letter(s) from current or former employer(s) showing 
that the alien has at least ten years of full-time experience in the occupation for which 
he or she is being sought 
(C) A license to practice the profession or certification for a particular profession or 
occupation 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability 
(E) Evidence of membership in professional associations 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
If the petitioner has submitted the requisite evidence, USCIS makes a final merits determination as 
to whether the evidence demonstrates "a degree of expertise significantly above that ordinarily 
encountered." 8 C.F.R. § 204.5(k)(2); see also Kazarian v. USCIS, 596 F.3d 1121, 1122 (9th Cir. 
2010); Rijal v. USCIS, 683 F.3d 1030 (9
1
h Cir. 2012) (calling for a final merits determination once 
the petitioner has met the plain wording of the regulatory requirements). Only aliens whose 
achievements have garnered "a degree of expertise significantly above that ordinarily encountered " 
are eligible for classification as aliens of exceptional ability. 8 C.F.R. § 204.5(k)(2); cf Kazarian at 
1120. 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker, on August 29, 2012. The 
petitioner ultimately claimed to have met five of the six exceptional ability standards at 8 C.F.R. 
§ 204.5(k)(3)(ii), as follows: 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The petitioner documented several academic degrees, culminating in a doctorate in musical arts from 
Michigan State University (MSU), awarded in 2009. This evidence meets the regulatory 
requirements. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of fttll-time experience in the occupation for which he or 
she is being sought. 8 C.F .R. § 204 .5(k)(3)(ii)(B) 
The petitioner did not initially claim to have satisfied this requirement, but he did so after the 
director issued a notice of intent to deny (NOID) the petition on October 18, 2013. The petitioner 
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cited letters submitted with the initial filing of the petition, and others provided in response to the 
NOID. The director concluded that the petitioner had met this requirement. The record, however, 
does not support this finding. 
The petitioner submitted letters from officials of the various symphony orchestras in Michigan, and 
from The wording of each letter is nearly identical apart from 
information about the individual organizations. Each of these letters indicated that "[t]he 
is the actual employer," and arranged to contract the petitioner's services to the 
other entities . The letters do not establish full-time employment, and the earliest employment 
documentation regarding the dates back only to 2009. These materials, therefore, do not 
establish ten years of full-time employment experience. 
Separate letters from orchestra officials refer to work going back to 2003, less than ten years before 
the petition's 2012 filing date. The letters do not attest to full-time experience or even indicate that 
the orchestras employed the petitioner. The petitioner was a graduate student from 2001 to 2009, 
and graduate study is not employment. 
Other letters attest, in fairly general terms, to earlier work that the petitioner performed, but these 
letters are not from current or former employers and they do not document full-time employment. 
Further letters submitted in response to the NOID also attested to the petitioner's talent, and offered 
the general claim that the petitioner has years of experience, but the letters did not attest to at least 
ten years of full-time employment experience. 
For the reasons discussed above, the petitioner has not fulfilled the requirement that he submit letters 
from current or former employer(s), showing that he has at least ten years of full-time experience in 
the occupation sought. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The petitioner submitted copies of various contracts which, the petitioner claimed, "demonstrate that 
[the petitioner] has commanded a competitive salary, or other remuneration for services, which 
demonstrates his exceptional ability in the field." A three-year contract with the guaranteed the 
petitioner "$14.20 per half hour of instruction." A "2012 Season Contract" with the 
provided for a fee of "$2 ,850.00 (less applicable taxes) for the entire 
period." 
Agreements with the . _ _ , both 
for the 2012-2013 season , refer to "the Current Master Agreement" with of the musician's 
union, but the petitioner did not submit a copy of the Current Master Agreement or otherwise 
establish any payment terms set forth in that agreement. 
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In the NOlO, the director indirectly indicated that the petitioner had not met this criterion, by not 
listing it among those that the petitioner had satisfied. In response, the petitioner objected that the 
director provided "no analysis in the NOID of how the evidence was deficient in meeting the 
criteria." The petitioner repeated the assertion that he "has commanded a competitive salary, or 
other remuneration for services , which demonstrates his exceptional ability in the field." The 
petitioner's response to the NOlO included no further evidence to establish that he commands 
compensation at a level that demonstrates exceptional ability. The petitioner claimed to have 
submitted additional examples of contracts, but the NOlO response in the record does not include 
this evidence. Furthermore, copies of contracts might establish the amount of the petitioner's 
compensation, but they cannot, in isolation, show that the amount demonstrates exceptional ability. 
The plain wording of 8 C.F.R. § 204.5(k)(3)(ii)(O) requires a comparison that is not possible when 
the petitioner documents only his own compensation. 
The submitted evidence does not always specify the amount of the petitioner's compensatiori, and 
when it does, it provides no basis for comparison to permit the conclusion that it demonstrates 
exceptional ability. The director found, therefore, that the petitioner had not satisfied the 
requirements spelled out in the regulation. 
The petitioner, on appeal, offers a general defense of the exceptional ability claim, but does not 
address this particular finding. When an appellant fails to offer an argument on an issue, that issue is 
abandoned. Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885, at *1, *9 (E.O.N.Y. Sept. 30, 2011) (plaintiff's 
claims abandoned when not raised on appeal to the AAO). 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The petitioner documented his membership in the 
of the which the petitioner identified as "an international 
union" of musicians. The director concluded that the petitioner had met this criterion, but the record 
does not support this finding. We will discuss the matter further in the final merits determination. 
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 introductory statement submitted with the petition listed 17 items under this standard, including 
academic scholarships, listings in directories, and high-ranking finishes in musical competitions. In 
denying the petition, the director determined that the petitioner failed to show that he "has been 
recognized by peers, governmental entities, or professional or business 
organizations for 
achievements and significant contributions to the industry or field." The director, in denying the 
petition, stated that the petitioner had not established a "national presence," or 
shown that he placed 
first in musical competitions, but the regulation's plain wording does not require achievement at that 
level. 
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Some of the petitioner's exhibits do not qualifY as evidence of recognition as required by the 
regulation, such as certificates from and the 
which do not show any specific connection to the field of musical 
performance. Others, however, clearly relate to specific achievements. The petitioner, for example, 
won the $2,500 second prize at the _ _ Michigan, in 
2004, and annual $11,000 music scholarships at "[i]n recognition of [his] outstanding 
accomplishments as a musician." The broader significance of this recognition is a matter for the 
final merits determination. The petitioner appears to have met the plain wording of the regulation, 
and we withdraw the director's contrary finding. 
If the six specified regulatory standards do not readily apply to the beneficiary's occupation, the 
petitioner may submit comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. 
§ 204.5(k)(3)(iii). The petitioner initially asserted: "comparable evidence must be taken in context 
with the given field of the arts. The nature of the field does not lend itself to having documentary 
evidence such as contracts with companies using the [petitioner's] product or licensed technology." 
The petitioner did not specifically explain how the standards listed at 8 C.F.R. § 204.5(k)(3)(ii) do 
not readily apply to his occupation; he claimed to have met five of those six standards. As shown 
above, the director found that the petitioner had met three of the standards, thereby triggering the 
final merits determination described in the Kazarian decision. Therefore, we will consider the 
petitioner's claims of comparable evidence in the context of the final merits determination. 
b. Final Merits Determination 
As noted above, the director found that the petitioner's membership in the satisfies the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E). The record, however, does not establish that this 
membership indicates exceptional ability. The petitioner acknowledges that the is a trade 
union, and as such it exists not to recognize high levels of expertise or achievement, but rather to 
protect the interests of all workers in a particular field. The introductory statement submitted with 
the petition acknowledged: "it would be unusual for an artist not to be affiliated with organizations 
in the field regardless of the criteria for membership." In this way, the petitioner stipulated that such 
memberships are ordinarily encountered in his field. The petitioner did not attempt to show that the 
has any restrictions on membership, such that acceptance into membership would be evidence 
of exceptional ability. 
For the above reasons, the petitioner has not shown that his 
exceptional ability. 
membership demonstrates 
The various awards and scholarships that the petitioner claimed as evidence of recognition under 
8 C.F.R. § 204.5(k)(3)(ii)(F) are limited in nature. The scholarships are specifically for students, 
who tend to be at the beginning of their musical career if they have been employed at all. The 
competitions for which the petitioner has provided background information are either for students or 
for "young musicians," with age ceilings of 35 years of age or younger. Therefore, by winning these 
accolades, the petitioner has distinguished himself not in the field, but in an age-limited segment of 
the field which, by nature, excludes the most experienced musicians. These limitations diminish the 
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Page 7 
evidentiary weight of the awards. Furthermore, the petitioner has not shown evidence of any recent 
recognition that would establish his standing in the field at the time of filing, rather than several 
years earlier while he was a student. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request. 8 C.F.R. § 103.2(b )(1 ). 
On his curriculum vitae, the petitioner claimed to be the "Winner of the 
" The only prize certificate dated 2001 that the petitioner 
submitted reads: 
It is not clear whether the 
petitioner won in an age-limited category. 
is related to, or the same as, the 
, but the certificate itself shows that the 
In terms of comparable evidence, beyond the six regulatory standards at 8 C.F .R. § 204 .5(k)(3)(ii) , 
the petitioner also claimed "sustained national or international acclaim," a phrase from section 
203(b )(1 )(A) of the Act that relates to a different immigrant classification, alien of extra ordinary 
ability. The petitioner listed eight (somewhat overlapping) elements of this asserted acclaim, some 
of which the standard criteria already covered : 
• Has appeared with various orchestras and symphonies in addition to solo concerts 
around the U.S. and the world .. . 
• Regularly requested to perform at various functions 
• Past and present invitations for performances 
• Has been featured as a soloist and concertmaster 
• Recipient of eminent award/scholarship prizes ... 
• Offered full music scholarship/awards by top institutions 
• Sampling of newspaper articles ... 
• Is a principal violinist (first and second) and a core member of the ensembles for 
various productions or events, which have a distinguished reputation . 
Performance is integral to the occupation of a musician; public performance does not, by itself, 
establish a degree of expertise significantly above that ordinarily encountered among musicians. 
The etitioner specifically identified four "organizations of distinguished reputation": the 
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The petitioner claimed leading roles with these organizations, and some of the individuals who wrote 
letters on behalf of the petitioner asserted that the petitioner has held first or second chair positions 
in unnamed orchestras, but the record does not provide more specific information on these claims. 
The petitioner's 2012-2013 service agreement with the specified his position as "71h Chair 
Violin 1," whereas the 2009 musician roster showed him in the fifth chair, indicating that his 
rank had dropped over time. 
personnel manager for the . stated only that the 
petitioner "was appointed a core member of the 1st violin section. " 
Dr. personnel manager for the _ , stated 
that the petitioner "plays 
a vital role in the first violin section." Neither writer specified the petitioner's chair. 
Dr. . _, artistic director of the 
soloist for three performances of 
also an associate professor and orchestra conductor at 
a student at the time of the identified performances. 
"hired [the petitioner] to be the 
" Dr. is 
______ _ where the petitioner was 
With respect to claims of media coverage, the petitioner submitted an interview from the 
publication on the occasion of his appearance as conductor and soloist at the State 
Conservatory of from which he had previously graduated. A multi-page interview with 
the petitioner ' s mother (a composer) in includes a brief mention of the petitioner, who 
was "working on his doctoral dissertation ." The newsp aper reviewed a 
1996 recital at which the petitioner performed. 
In terms of United States publications, the petitioner submitted articles from local newspapers in 
identifying the winners of a a newsletter from the County 
profiling a number of local musicians from the former an 
article from the _ previewing a performance that would feature 
the petitioner; a page from the web site of the showing 
photographs of several musicians including the petitioner; and an article from the . 
identifying the petitioner as a member of a string quartet that played at a campus 
cafe. All of this coverage in the United States appeared between 2001 and 2004. 
The record shows that audio and video recordings of the petitioner's performances exist on compact 
disc and DVD. Many of the recordings have generic labeling consistent with private pressings rather 
than commercial release, but the petitioner issued an album on the · _ label. 
The petitioner provided no sales figures for the recordings. His response to the NOID included 
several pages copied from the September/October 2012 issue of . a 
publication dedicated to reviews of classical music performances and recordings. The published 
review of the petitioner 's album stated that the petitioner's "violin playing is impressive everywhere. 
It is no easy task to play this music, and it is a pleasure to hear it played so well." The issue of the 
included 152 ages of reviews, and the review in question occupies roughly half a page, 
indicating that the publishes hundreds of reviews per issue and likely more than a thousand 
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per year, justifying the named staff of 49 reviewers. Given this large number of reviews , it is not 
evident that the only reviews recordings of particular significance or distinction. The record 
does not show that the petitioner's work has attracted any other critical attention. 
An online listing for the petitioner 's album on quoted the review, and invited 
submission of reviews from buyers, but indicated "[t]here are currently no reviews." The existence 
of a commercially released recording does not establish exceptional ability. The petitioner has not 
established that is a major recording company or that his album's critical or commercial 
reception distinguishes it from the works of other artists in the genre. 
The director denied the petition on December 7, 2013, stating that the petitioner had met the plain 
wording of three evidentiary standards, but that the evidence, as a whole, did not pass the final 
merits determination. The director acknowledged that the petitioner had documented many musical 
performances, but found that " [ o ]bjective evidence has not been submitted to clearly show that the 
petitioner has a degree of expertise significantly above that ordinarily encountered in the sciences, 
arts , or business." 
On appeal, in the appellate brief , the petitioner claims : 
[The petitioner] is known throughout the world for his extraordinary 
accomplishments. [The petitioner] is currently considered to be one of the best 
violinists in the world and is in great demand by U.S. based organizations to hear his 
playing. It is evident through his academic and professional achievements that by any 
standard, he has achieved extraordinary recognition in the field. 
The petitioner does not discuss the regulatory standards for exceptional ability, instead revisiting the 
criteria for extraordinary ability and asserting that "[h]is performances and his magnetic presence 
have earned him popularity and acclaim that reach far beyond the concert hall." The petitioner 
identifies previous submissions in a footnote, but does not explain how that evidence establishes his 
exceptional ability in the arts or supports the claim that he "is currently considered to be one of the 
best violinists in the world." Demand for his services is largely focused in Michigan, and he has not 
submitted any evidence to show the commercial success, either in record sales or ticket sales, that 
would be expected from the world-renowned figure he claims to be. The petitioner has established 
that he is an experienced and well-trained musician , but he has not demonstrated the level of 
expertise necessary to qualify as exceptional. 
At various times in this proceeding, the petitioner has asserted that he is "a person holding an 
advanced degree." The petitioner does hold an advanced degree, but, by statute, the classification in 
question is for a member of the professions holding an advanced degree. On appeal, the petitioner 
specifically claimed: 
[The petitioner] is an advanced degree professional. He holds his Ph.D. degree and 
has over 17 years of rich professional experience in the field. As such , he is an 
individual to be classified as a person holding an advanced degree . . . . [The 
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petitioner] qualifies based on his advanced degree and no further analysis need be 
provided. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as "one of the occupations 
listed in section 101(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." Section 10l(a)(32) of the Act lists "architects, engineers, lawyers, physicians, 
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." The 
petitioner's occupation is not listed. He teaches violin part-time, but he has not shown that he does 
so at an elementary or secondary school, college, academy, or seminary. 
The petitioner has not established that a baccalaureate degree is the minimum requirement for entry 
into the occupation of violinist. He has not shown, for instance, that the lack of a bachelor ' s degree 
would prevent a violinist from performing in public or in a recording studio. The petitioner holds 
advanced degrees, but this does not establish that such a degree is required. 
director of the indicated that his school "has 55 highly 
trained faculty members. Ten have doctorate degrees, 21 have masters degrees and 14 have 
bachelors degrees." Those numbers add up to 45, indicating that ten faculty members do not have 
such degrees. This letter, on its face, indicates that a baccalaureate degree is not a minimum 
requirement for a teaching position at the school. Therefore, the record does not support the claim 
that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree. 
II. National Interest Waiver 
The remammg question is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. The petitioner cannot qualify for 
the waiver without qualifying for the underlying immigrant classification, but the director addressed this 
issue in the denial rather than regarding it as moot. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally , 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .. .. " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989) . 
Supplementary information to regulations implementing the Immigration Act of 1990, Pub. L. 
101-649, 104 Stat. 4978 (Nov. 29, 1990), published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991), 
states: 
The Service [now USCIS] believes it appropriate to leave the application of this test 
as flexible as possible, although clearly an alien seeking to meet the [national interest] 
standard must make a showing significantly above that necessary to prove the 
"prospective national benefit" [required of aliens seeking to qualify as "exceptional.") 
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The burden will rest with the alien to establish that exemption from, or waiver of, the 
job offer will be in the national interest. Each case is to be judged on its own merits. 
In reNew York State Dep 't a_[ Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOT), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the alien seeks employment in an area of 
substantial intrinsic merit. Jd. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. Jd. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the 
same minimum qualifications. ld. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien 's past record justifies projections of future benefit to the national interest. ld. at 219. The 
petitioner's assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The term "prospective" is included here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. ld. 
The introductory statement submitted with the petition reads, in part: 
(The petitioner] is substantially contributing to the field of music through his 
performances as a violinist. There has been a void in this field and (the petitioner], 
through his exceptional musical abilities, will continue to play a significant role in the 
strengthening of this field of the arts in America, which arts will substantially benefit, 
improve, and expand cross-cultural understanding, improve the U.S. education and 
youth programs, and improve environmental 
consciousness and the economy by 
making the U.S. fine arts more accessible. Furthermore, he will share his expertise in 
music , which might not otherwise be utilized in our society. 
The petitioner first arrived in the United States in 1999, and he appears to have been in the United 
States for most of the time since then. The record does not show that his past efforts here have had 
the results described above, and he did not explain why his future endeavors would have a greater 
impact than his past work. 
The petitioner stated: 
(The petitioner] has ... established himself as a leading artist nationally with a 
concentration in the Michigan area .... 
[The petitioner's] work is inspiring the artistic community from Michigan and 
beyond. He is known for his extraordinary accomplishments and contributions ... as 
a violinist. He is currently considered to be one of the best in the world and is in 
great demand by U.S. based organizations .... (H]e has unique tools and a high level 
of expertise .... 
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[The petitioner's] dynamic talent has earned his popularity and acclaim that reach far 
beyond the concert hall .... 
The work that [the petitioner] performs as a violinist also has the potential to change 
the way our society views classical music .... 
Obtaining the best performers and getting the best teachers with the strongest skills in 
front of our students is the key not only to giving young people the chance to live full 
and rewarding lives, but also to improving the economy and the society. Although 
our nation faces a "teacher shortage," more to the point would be that the nation faces 
a distinct "skills shortage" among those who do enlist to serve as teachers .... 
Requiring labor certification would stifle [the petitioner's] ability to significantly 
move forward in this evolving field .... In order for [the petitioner] to most 
significantly benefit the field and the nation, he must be able to adapt to this ever­
changing field and to be involved [in] various aspects of artistic community, which 
would be significantly hindered by the requirement of a Labor Certification . 
Much of the petitioner's supporting evidence has already received consideration above, in the 
discussion of his claim of exceptional ability in the arts. These materials do not substantiate the 
level of impact and influence claimed in the introductory statement. That introductory statement 
relied heavily on excerpts quoted from a number of letters submitted with the petition. 
Three of those writing on behalf of the petitioner have known him since the 1990s. 
a cellist with several symphony orchestras in southern California who has "known [the 
petitioner] for over 20 years ," called the petitioner "one of those very rare people for whom nothing 
is impossible. He is an amazing, world-class, virtuoso, whose musical interpretations are always 
very original and highly convincing." 
The other two writers who met the petitioner in the 1990s first encountered him at a 1993 
competition in now assistant concertmaster of the 
called the petitioner "an outstanding violinist with extraordinary talent," who "plays with 
a kinetic energy and versatility that is rarely found." 
_ now the Chamber Ensemble coordinator at _ deemed the petitioner 
to be "one of the most talented and accomplished violin player[s] in the field today ... . His 
performing style is an astonishing combination of a brilliant technique and a heartfelt sound, coupled 
with strength and artistic magnetism." Mr. asserted that "[t]here is currently a shortage of good 
violin teachers within the state of Michigan, along with the rest of the nation." A local labor 
shortage is not grounds for the waiver, because the labor certification process is already in place to 
address such shortages. See NYSDOT, 22 I&N Dec. at 218. 
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the petitioner's violin teacher at stated that the petitioner "has a unique 
ability to touch the audience with his warm personality and moving performances .... He is able to 
engage his audience in ways that many other artists cannot." 
, a professor at stated that the petitioner 's "playing is first-rate ," and cited "the 
distinct lack of talented and creative individuals." 
Dr. attended and, like the petitiOner, has played for various orch estras in 
Michigan. She stated: "When [the petitioner] joined our orchestras he, from the very start , revealed 
himself as a professional of great expertise and utmost mastery. " 
assistant principal violinist 
with the encountered 
Missouri. He deemed the 
His playing style [is] unique and he plays with an 
the petitioner at the -- -~-­
petitioner to be "a violinist of the highest caliber. 
easy wit that is unmatched by others." 
The writers quoted above appear to be sincere in their opinions of the petitioner's skills , but the 
record does not show that these opinions prevail beyond the petitioner's circle of mentors and 
collaborators. 
In the October 2013 NOID, the director stated that the petitioner had not established that his work, 
concentrated in Michigan, has had "national influence on the field." 
In response, the petitioner asserted that , "[ s ]ince the filing of the petitiOn, [he] has also begun 
employment with 
Masterful Musicians ... in CO." The petitioner continues to reside in 
Michigan, and to claim employment with several organizations in Michigan. As noted above , the 
regulation at 8 C.F.R. § 103.2(b)(l) requires the petitioner to establish eligibility at the time of filing 
the petition. USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'! Comm'r 1971). Furthermore, the petitioner submitted no evidence or information about the 
nature of his employment with Masterful Musicians. More persuasively, the petitioner asserted that 
the benefit from his work is not restricted to Michigan, because he has toured nationally and 
internationally. 
The petitioner repeated the earlier assertion that "[r]equiring labor certification would stifle [the 
petitioner's] ability to significantly move forward in this evolving field. " The petitioner asserted that 
his "extraordinary work in the field is recognized by the experts and the public at large, as 
demonstrated by the included letters of support, contract, press releases and requests from 
organizations to perform." The 
record shows that the petitioner has an active performing career, but 
this is not evidence of "extraordinary work ." 
The petitioner submitted additional letters which, like the earlier letters, are from individu als with 
ties to the petitioner and his employers. Dr. , who has "known [the petitioner] since 
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Page 14 
his childhood," ranked the petitioner as "truly a violinist of the highest caliber [who] has long been 
recognized for his extraordinary talent in the field." 
who has played with the petitioner "in several orchestras" in Michigan, contended 
that the orchestras recruit talent at an "extremely high level," and that the petitioner "is also a 
distinguished teacher" and "an accomplished conductor." 
professor at stated that the petitioner "is an individual of extraordinary and 
rare talent. Through his art, he has reached a high level of achievement in the field .... [He] has the 
uncanny ability to invoke a variety of moods through his playing." 
identified previously as director of the 
accomplished musician" and "a wonderful instructor." 
called the petitioner "an 
director of stated that the petitioner ' s "continued work 
in [the 
arts] will have a direct and beneficial impact" educationally and economically. The petitioner 
submits no verifiable evidence that his efforts in the United States over the past several years have 
already had measurable effects in these areas. Without such evidence , the claim that his future 
efforts will have those effects is only speculation. 
personnel manager of the asserts that the petitioner 's success in the 
"rigorous audition process . . . indicates he is a talented leader in his field. " 
Dr. _ , president of claimed that the petitioner "is 
recognized by many top names in the music industry and is highly sought after to contribute to 
musical collaborations. " The record does not substantiate this claim. Dr. did not establi sh 
that the petitioner's album on has attracted significant critic al attention or sales. 
The Board of Immigr ation Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving ." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held , however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available ." /d. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B- , 21 I&N Dec. 1136 (BIA 1998). 
The opinions of. experts in the field are not without weight and have received consider ation 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matt er of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). How ever, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. /d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letter s as to 
whether they support the alien's eligibility . USCIS may even give less weight to an opinion that is 
not corroborated , in accord with other information or is in any way que stionable. See id. at 795 ; see 
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Page 15 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. 165. 
The letters considered above contain numerous claims regarding the petitioner's level of 
achievement and recognition, but the documentary evidence in the record fails to support these 
claims. 
The director, in denying the petition, stated that the record failed to substantiate many of the claims 
in the submitted letters; that the petitioner 's work is largely confined to Michigan , with no showing 
of wider benefit; and that " [t]he record does not establish that the petitioner has had a significant 
influence [on] the field of endeavor that would justify a waiver of the job offer requirement. " The 
director granted only the first prong of the NYSDOT national interest test, pertaining to substantial 
intrinsic merit. 
On appeal, the petitiOner contests the director ' s finding regarding the national scope of the 
petitioner's work. The national scope prong of the NYSDOT national interest test concerns the 
occupation rather than the petitioner individually. The petitioner works mainly in Michigan, but has 
performed elsewhere , and has commercially released recorded work . There is nothing inherently 
local about musical performance, as is evident from the international fame of some well-known 
musicians. It is possible for the work of a musician to produce benefits at the national level. 
Whether the petitioner, individually, has done so is a question for the third NYSDOT prong. We 
withdraw the director ' s finding that the petitioner's work lacks national scope . 
The petitioner asserts: "Through his performing and teaching he is currently enhancing the academic 
programs of various institutions ... and is substantially benefiting , improving, and expanding cross­
cultural understanding, improving the U.S. education and youth programs, and improving 
environmental consciousness and economy by making the U.S . fine arts more accessible ." The 
petitioner provided no verifiable evidence of these effects, or to show that his impact in these areas 
has exceeded that of others in his field to an extent that would justify a waiver of the job offer 
requirement. 
Rather than establish the impact of his album, the petitioner notes that it was reviewed in "America 's 
oldest classical music review magazine." The reputation of the . does not 
convey significant cultural impact on the hundreds of recordings reviewed in each issu e of that 
publication. 
The petitioner asserts: "national interest waivers are usually granted to those who have exceptional 
ability ... and whose employment in the United States would greatly benefit the national" [sic]. 
Setting aside the finding that the petitioner has not established exceptional ability in the arts , aliens 
of exceptional ability, who will substantially benefit prospectively the United States, are 
presumptively subject to the job offer requirement. See section 203(b )(2)(A) of the Act. Eligibility 
for the waiver is a second, higher threshold, described in NYSDOT (as no definition appe ars in the 
relevant statute or regulations). Assertions of exceptional ability , therefore, do not demonstrate 
eligibility for the waiver. 
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Page 16 
The writers of many of the letters in the record otTer subjective praise for the petitioner's talent as a 
musician and 
the effect of his playing on an audience. The record offers nothing concrete to 
establish that the petitioner has influenced his field as a whole. Evidence of ongoing employment is 
not evidence of impact or influence. The petitioner and those writing on his behalf cannot establish 
that impact simply by calling him a top musician, and calling his employers leading organizations in 
his field. The record does not establish a wider consensus on these points. 
The petitioner need not establish national acclaim to qualify for the national interest waiver; that 
standard applies to the higher "extraordinary ability" classification at section 203(b)(l)(A) of the 
Act. Nevertheless, the petitioner has chosen to rely on assertions of such acclaim, and USCIS 
cannot approve the petition unless the petitioner's assertions are found to be true. See section 204(b) 
of the Act. The gap between the claims in the letters and the documentation in the record prevents 
such a finding. 
The petitioner has established that he is an experienced musician and teacher, who has earned the 
respect of his colleagues. He has not, however, established a past record of achievement at a level that 
would justify a waiver of the job offer requirement. The petitioner need not demonstrate notoriety on 
the scale of national acclaim, but the national interest waiver contemplates that his influence be national 
in scope. NYSDOT, 22 I&N Dec. 217, n.3. More specifically, the petitioner "must clearly present a 
significant benefit to the field of endeavor." !d. at 218. See also id. at 219, n.6 (the alien must have "a 
past history of demonstrable achievement with some degree of influence on the field as a whole"). 
On the basis of the evidence submitted, the petitioner has not established that he qualifies for 
classification as an alien of exceptional ability in the arts, or that a waiver of the requirement of an 
approved labor certification will be in the national interest of the United States. We will dismiss the 
appeal for the above stated reasons, with each considered as an independent and alternate basis for the 
decision. In visa petition proceedings, it is the petitioner's bw-den to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.