dismissed EB-2 NIW Case: Music

(b)(6)
DATE: SEP 1 7 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:/Jwww.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. 
Thank you, 
).AOUdncL 
(' Ron Rosenberg 
{ Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before us 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 composer and tango guitarist. 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 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 letters and other supporting evidence. 
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. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on April 15, 2013. An 
introductory statement submitted with the petition reads, in part: 
[The petitioner) is a composer and tanl!o l!Uitarist of exceptional ability who has 
created a music genre called which combines the music of Buenos 
Aires with many other musical int1uences. His compositions bring together the 
beautiful melodies and passion of the tango with electronica , pop, rock, folk, and 
symphonic music .... 
[The petitioner's] versatility as a[n] exceptional guitarist , composer, and teacher make 
him the rare musician able to perform at the highest musical levels and also able to 
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mentor, communicate, inspire and motivate students and audiences. His prodigious 
talents are critical to the national goals of furthering music, diverse cultures, and the 
arts, and musically educating our children to become well-rounded, contributing 
members of society. 
I. Exceptional Ability 
The first issue under consideration is whether the petitioner qualifies for classification as an alien of 
exceptional ability in the arts. To establish exceptional ability in the sciences, the arts, or business, 
the U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.5(k)(3)(ii) 
requires the petitioner to 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; 
(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; and 
(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 above 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). 
Where the petitioner fails to submit the required evidence, the proper conclusion is that the petitioner 
failed to satisfy the regulatory requirement of three types of evidence. Cf Kazarian v. USCIS, 
596 F.3d 1115 (9th Cir. 2010). If the petitioner has submitted the required 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 at 1121, 
1122. Only aliens who have demonstrated "a degree of expertise significantly above that ordinarily 
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encountered" are eligible for classification as aliens of exceptional ability. 8 C.F.R. § 204.5(k)(2); 
see also Kazarian at 1120. 
The introductory statement submitted with the petition indicated that the petitioner meets criteria (A) 
and (F) listed above, and then cited "comparable evidence" beyond the regulatory standards. The plain 
wording of the comparable evidence clause requires the petitioner to demonstrate that the above 
standards do not readily apply to his occupation. If the standards do apply to that occupation, the 
petitioner's inability to meet those standards does not trigger the comparable evidence clause. 
Nevertheless, any evidence outside of the specified standards that reasonably demonstrates exceptional 
ability will receive due consideration. 
Following the director's issuance of a request for evidence (RFE) on May 8, 2013, the petitioner 
claimed to meet criteria (B), (D), and (E) in addition to those claimed previously. 
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) 
In April 2006, in Argentina awarded the petitioner an "intermediate degree" "in 
Technology and Music" relating to "composition with electroacoustic aids." A 2010 transcript from 
the shows other music-related coursework in 1997-
98 and 2005-2006 at the 
The director, in the RFE, stated that the petitioner had satisfied the regulatory criterion, but also 
instructed the petitioner to submit qualifying translations of foreign-language documents as required 
by the regulation at 8 C.F.R. § 103.2(b)(3). The petitioner submitted no further academic 
documentation in response to the RFE. 
In the denial notice, the director stated "the evidence submitted meets this criterion." The evidence 
establishes that the petitioner holds an academic degree relating to the petitioner's area of claimed 
exceptional ability, tbereby meeting the plain wording of the regulation. 1 
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. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
On Form ETA-750B, Statement of 
Qualifications of Alien, the petitioner listed the following past 
experience: 
1 If the evidence had warranted a final merits determination, then it would be necessary to examine specific aspects of 
the academic documentation and determine whether the petitioner had shown that his level of education demonstrates 
exceptional ability. In this instance, however, a final merits determination is not necessary because the petitioner has not 
facially met at least three of the regulatory criteria. 
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2006-present; 10-60 hours per week 
2006-2007; 30 hours per week 
Musicos, 2007-2008; 20 hours per week 
. 2008-2009; 30 hours per week 
, 2010-2011; 35 hours per week 
An accompanying resume listed the same employers, with the dates of employment at 
listed as 2007-2008 instead of 2010-2011. The petitioner did not, however, 
submit letters from employers attesting to the claimed employment. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Furthermore, the earliest employment claimed in the list above was in 2006, less than 10 years 
before the petitioner filed the petition in 2013. 
In response to the RFE, the petitioner submitted a letter from 
stating that the petitioner "has been working for 
"producer and composer." Mr. identified 
(2005), and _ _ . (2007) as being "[a ]mong 
productions for this company." The petitioner had not identified 
when he first filed the petition. 
The petitioner also pointed to a translated letter from the 
president of 
since 2002" as a 
(2003), 
lthe beneficiary's] musical 
as an employer 
indicating that the petitioner had been a member since September 30, 1994. 
Memberships in associations fall under a different criterion, discussed further below. The letter did 
not indicate that the society was the petitioner's employer, that the petitioner had worked full-time 
since joining the society, or that ongoing full-time employment is a condition of membership in the 
society. The letter, therefore, is not qualifying evidence of past full-time experience. 
In denying the petition, the director stated "the evidence submitted does not meet this criterion." On 
appeal, the petitioner submits new letters and certificates attesting to his employment from March 
21, 2002 onward. expanded on his earlier letter, stating: 
hired fthe petitionerl on March 21th fsicl, 2002 to work producing 
three unique discs, ' 
[The petitioner] used to work an average of 8 hours per day in the studio (from 
Monday to Friday) .. . . On Saturdays, he used to work until 4 pm .... 
[The petitioner] kept the same 8 hours a day routine, and full time occupation in 
musical productions, till April3rd, 2007. · 
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Producer stated that he "spent 60 hours per week" working with the petitioner 
during the last few weeks of the above period, from January 29 to April 3, 2007. The letters indicate 
that the petitioner worked eight-hour days while working on production of the three named albums, 
but they does not establish that the petitioner worked on these projects without interruption for five 
years straight. 
Sectretary of stated that the petitioner worked "6 
hours daily" as a music teacher fwm April 9, 2007 to February 28, 2008. This letter documents 
slightly less than 11 months of part-time employment. 
producer and conductor with the stated that the 
petitioner "was contracted as a guitarist specializing in tango," working "six hours per day Monday 
through Friday," from March 3, 2008 to January 2, 2010. This letter attests to 22 months of part­
time employment. The petitioner did not claim this experience on his resume or on Form ETA-
750B, or in response to the RFE. Instead, the petitioner initially claimed to have worked 30 hours a 
week as a composer/arranger at in 2008 and 2009. 
vice president of stated that the petitioner "worked full time, 
during two years and a half, from March 201 0 to September 2012 for ' Mr. 
claimed that the petitioner worked from 9:00a.m. to 7:00p.m. "every day, from Monday to Friday," 
composing, performing, and performing various production-related tasks that culminated in the 
album. The petitioner did not claim this employment until the appeal. 
manager of stated that the petitioner "spent 1070 working hours in the 
post-production room" "from May to September, 2012." The number of hours claimed is consistent 
with full-time employment over a period of no more than five months, but the petitioner did not 
claim this employment until the appeal. 
Where, as here, the director has notified the petitioner of a deficiency in the evidence and given the 
petitioner an opportunity to respond to that deficiency, we will not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). 
Furthermore, the new claims of employment conflict with the petitioner's earlier claims, raising 
doubts as to the petitioner 's actual employment history during the period in question. Doubt cast on 
any aspect of the petitioner 's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice. /d. at 582, 
591-92. 
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When the director denied the petition on November 13, 2013, the director correctly found that the 
petitioner had not submitted letter(s) from current or former employer(s) showing that he has at least 
ten years of full-time experience in the occupation for which he is being sought. The director 
offered the petitioner a timely opportunity to remedy this deficiency, but the petitioner did not do so 
until the appellate stage, and the evidence submitted on appeal contradicts the petitioner's previous 
claims. The new letters that are consistent with the petitioner's prior claims show part-time 
employment, not the full-time employment required by the plain wording of the regulation. 
Therefore, the petitioner has not satisfied this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.P.R. § 204.5(k)(3)(ii)(C) 
The petitioner did not claim to have satisfied this criterion. 
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's initial submission did not address this criterion. Following the RFE, the petitioner 
submitted copies of itemized documents from bearing the logo, showing 
payments of 9,689.40 Argentine pesos on May 30, 2013 and 7,840.65 Argentine pesos on June 28, 
2013. The petitioner stated that these sums reflected sales of his albums on compact disc. Other 
receipts, also dated mid-2013, show 
smaller payments. 
The documented payments occurred after the petition's filing date. 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). 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'l Comm'r 1971). 
Furthermore, the documents, by themselves, show only that the petitioner has earned income from 
his work. Without a documented basis for comparison, the figures do not show that the petitioner's 
earnings demonstrate exceptional ability. 
A copy of the petitioner's 2012 contract with lacks a translation, and there is no 
evidence that the terms of payment to the petitioner deviate from the standard terms in Argentinian 
recording contracts. With no basis for comparison with other recording artists, the petitioner has not 
shown that his terms of compensation demonstrate exceptional ability (for example, through an 
exceptionally high royalty rate or large advance on projected royalties). 
In denying the petition, the director acknowledged that the petitioner submitted some evidence of 
remuneration, as described above, but found that the petitioner has not established that the level of 
that remuneration demonstrates exceptional ability. The petitioner, on appeal, does not contest this 
finding. When an appellant fails to offer an argument on an issue, that issue is 
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Page 8 
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.D.N.Y. Sept. 30, 2011) (plaintiffs 
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's initial submission did not address this regulatory criterion. The petitioner's 
response to the RFE included the aforementioned letter from attesting to his membership 
since September 30, 1994. Another translated letter indicated that the petitioner had belonged to the 
_ since October 21, 2009. The translation of the letter is 
inconsistent, at one point translating the organization's name as 
' but elsewhere providing the translation 
The director found that the petitioner had satisfied this criterion. The evidence satisfies the plain 
wording of the regulation. 2 
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) 
A certificate reproduced in the record reads, in part: 
Another certificate reads, in part: 
A third certificate, dated 2001, is in Spanish, without the translation required under 8 C.F.R. 
§ 103.2(b )(3). The certificates do not document achievements or significant contributions to the 
2 
Again, the issue of whether the membership is consistent with a finding of exceptional ability would have been a matter 
for the final merits determination, had the record warranted a final merits determination. 
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field, and the petitioner has not shown that his participation in these events amounted to significant 
achievements or contributions to the field. 
The petitioner asserted that several third-party letters constitute recognition by peers. We will 
consider the contents of those letters, but they do not constitute recognition as contemplated by the 
regulation quoted above. Discussion of the letters will appear below, in the context of the national 
interest waiver. 
In the RFE, the director stated that the petitioner had not met the regulatory criterion. In response, 
the petitioner submitted additional letters, along with various other exhibits. As evidence of 
"Argentine Governmental Recognition," the petitioner submitted two translated letters from an 
unnamed official of , General Office of Cultural 
Affairs. One letter, dated July 4, 2013, stated: "we have promoted the [petitioner's] music ... in 
various countries around the world." The other letter stated that the petitioner's performances "in 
Washington D.C., New York and Miami between July 15 and 26, 2013, are considered of great 
Artistic and Cultural Interest by this General Office, considering the prestigious career of this 
performer." The date of the letter is July 12, 2013, before those performances took place. The letter, 
therefore, was not a commentary on the known significance of the performances, but rather an 
assertion that, by their very nature, they would be significant. 
Although the letters predated the petitioner's 2013 performances, they did not exist until after the 
petition's April 2013 filing date. The petitioner's response to the RFE must establish eligibility as of 
the petition's filing date. See 8 C.F.R. § 103.2(b )(12); see also Matter of Katigbak, 19 I&N Dec. at 
49. 
The petitioner also cited "contracts with companies using [his] musical talents" as evidence of 
recognition. The petitioner, however, did not explain how these contracts amount to recognition for 
achievements and significant contributions to the field, rather than routine business arrangements 
that establish the terms of business that has yet to be transacted. 
The director found that the petitioner had not submitted qualifying evidence of recognition for 
achievements and significant contributions to the field. On appeal, the petitioner submits more 
letters, as well as a Novemh~r ?0. 7011 certification stating: 
hereby certifies tha is considered of great Artistic and Cultural interest, 
considering the prestigious career of the [petitioner] through his achievements and contributions in 
art and modem music fields. " The certificate, signed by director of tourism 
promotion, indicates that the petitioner "has had our support since 2005 till present time. Our 
sponsorship [of the petitioner] consists [of) subsidies for travels, participation in local events and 
economic subventions various [sic]." The record contains no first-hand documentation of this 
sponsorship, and no evidence that government patronage of this kind consisted of grants provided in 
advance of specified projects or sums paid after the fact in recognition of achievements or significant 
contributions to the petitioner's field. 
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The petitioner has not overcome the director's finding that the petitioner did not submit sufficient 
evidence to establish recognition for achievements and significant contributions to the field. 
Beyond the six specified regulatory standards, the petitioner submitted a professionally printed 
"dossier" including untranslated Spanish text, photographs of the petitioner, and images of 
documents including his academic records, certificates, and web printouts in various languages, with 
his name circled. One page consists of claimed quotations from U.S. publications, translated into 
Spanish. Without the required English translation, the "dossier" has minimal weight as evidence. 
The petitioner submitted copies of English-language articles. A article focuses not 
on the petitioner, but on the founder and director of the ~ 
that takes place annually in Virginia. Mr. stated that his 
"role in the festival is to help these new artists" such as the petitioner, whom the article described as 
"a guitarist and composer of " An article from L _ romoted the 2011 
listing several participants including the petitioner "with his acclaimed 
Articles from announced the U.S. release of 
a 
album. The two articles appeared the same day, May 24, 2012, they include the same 
photograph of the netitioner. and their text is almost entirely identical, even including the same 
grammatical error: ' features an array a special guests from Argentina and other 
countries." These similarities suggest that both articles derive from a common source. That 
common source appears to be a press release from the petitioner or his record label; the 
version of the article begins by stating that the petitioner "is proud to announce the release of 
his CD to audiences in the United States." The same language, including the "array a 
special guests" error, appeared on the web site of announcmg 
the petitioner's appearance at that venue on June 27, 2012. 
A short rofile of the petitioner appeared in promoting his upcoming appearance "at 
The record contains · no other information about the publication; a 
reduced-size color photocopy of a two-page spread from the publication is mostly illegible. Brief 
listings in other publications announced the petitioner's performances at club venues and festivals. 
Apart from the materials derived from the petitioner's own press release, the English-language 
materials in the record do not show significant media discussion of the petitioner or 
The petitioner's RFE response included a three-page "media coverage" booklet, adapted and 
translated from the previously submitted dossier. The first page is an English translation of claimed 
quotations from U.S. publications including the The 
petitioner indicated that all of the quoted stories appeared between May and July of 2012, but he did 
not provide exact dates or copies of the quoted articles. The quotations, therefore, appear out of 
context. Furthermore, the petitioner did not provide the original English quotations. 
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The second page of the booklet consists of screen captures of the petitioner on various television 
programs. Added captions identify the networks or local stations, but not the specific shows or 
broadcast dates. The petitioner indicated that, except for an appearance in Manhattan, all of the 
depicted appearances took place in Washington, D.C. or nearby areas of Virginia. The third page of 
the booklet, captioned _ _ ' consists of five photographs of the 
petitioner talking to journalists. 
The RFE response also included a spiral-bound set of printouts from several web sites offering his 
albums for sale (including listings on the auction site eBay, offering individual copies of the 
albums). The printouts do not include sales figures. Therefore, the printouts demonstrate that the 
petitioner's recordings are available, but they do not establish a sales volume significantly above that 
ordinarily encountered in the field. 
The petitioner has met the requirements of only two of the six regulatory standards for exceptional 
ability, as shown in the above discussion. Therefore, the petitioner has not made a prima facie 
showing that would warrant a final merits determination regarding the exceptional ability claim. 
The petitioner has not submitted sufficient evidence to establish exceptional ability in the arts. 
II. National Interest Waiver 
The remaining issue in contention is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. 
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 US CIS] 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."] 
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 of 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 
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substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be 
national in scope. /d. 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. /d. 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. /d. 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. /d. 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offer/labor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, to qualify for the waiver, it 
cannot suffice for the petitioner to claim a degree of expertise significantly above that ordinarily 
encountered in his field of expertise. 
Although the petitioner cannot qualify for the national interest waiver without an underlying finding 
of exceptional ability in the arts, the director nevertheless rendered a decision on the merits of the 
national interest waiver claim. 
The director found that the petitioner's occupation as a composer, performer and producer has 
substantial intrinsic merit, and that, as a touring musician, the benefit from the petitioner's work is 
national in scope. The widespread availability of the petitioner's recorded work, on compact disc 
and on download sites such as iTunes, would also be consistent with such a finding. Therefore, the 
issue to be decided is whether the petitioner has established a past history of demonstrable 
achievement with some degree of influence on the field as a whole. 
The evidence discussed above establishes that the petitioner is a touring musician and recording 
artist who has received some media coverage. These factors, however, do not necessarily establish 
the influence on the field necessary to qualify for the national interest waiver. 
The introductory statement submitted with the petition included the following claims: 
[The petitioner] will play a vital role in nationally important cultural and educational 
goals. His singular presence is vital to their success. His well-earned reputation as an 
exceptional musician who will significantly benefit art and music reveals that he will 
serve the national interest to a substantially greater extent than would American 
workers similarly qualified .... 
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The anticipated benefits from [the petitioner's] work derive from his proven record of 
achievement and his unique and innovative talents, knowledge and background. The 
professionals involved in his musical career ... note that more than mere minimum 
qualifications are required to succeed in the competitive world of professional 
musicians and in the valuable teaching projects in which he has worked .... The loss 
of his talent and expertise would be contrary to the important national interest of 
providing quality cultural and artistic experiences to our citizenry. 
As indicated above, the petitioner has submitted several letters in support of the petition. Many of 
the writers limited their comments to discussions of the petitioner's academic or employment 
experience. Such assertions are not relevant in the context of eligibility for the waiver. Of relevance 
in this discussion are the letters that distinguish the petitioner from his peers based on something 
beyond a perceived difference in skill level (because an above~average level of expertise, consistent 
with exceptional ability, does not suffice to qualify one for the waiver). 
The petitioner has not established that certain writers are musicians or music experts. 
advisor to the minister at the stated: 
I met [the petitioner] in June 2011, when he was performing in Washington D.C. At 
that time, I was working ... as a Foreign Legal Consultant for [an] international law 
firm .... 
When I saw [the petitioner] performing for the first time, I was impressed by his truly 
outstanding talent and passion for tango music. Afterwards, I have had the privilege 
to attend several of his shows in the Washington DC area and Bogota (Colombia). I 
have also read some of his unpublished compositions. I can therefore confirm [the 
petitioner's] special sensitivity and talent for the beaux-arts. 
In my view, [the petitioner] and his work on have brought and will 
continue to bring a uniquely modern and highly regarded style to the tango music 
genre. Nowadays, he is one of the small numbers of prominent tango performers in 
Argentina and the rest of the American continent. 
an Argentinian realtor now in . 
intellectual, academic and musical asset" arid stated: 
Virginia, called the petitioner "an 
My lifelong passion for music is what brought me into contact with [the petitioner], a 
recognized figure of Argentina's most distinguished musical talent. For quite some 
time, he has endeavored in the research of themes shared by the popular Tango music 
with the equally accepted and more contemporary sounds of American Rock, 
resulting in a unique blend called _ which enjoys international acclaim. 
[The petitioner] has performed concerts throughout Latin America and various cities 
in the US, to the delight of the audiences. He wants to reside in the U.S. to further 
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expand his exploration of American music, and for him to be an ambassador of Latin 
American Music. In this regard he brings a unique perspective in bridging the 
cultures of the two countries which would strengthen the bonds between the 
Americas. 
Letters such as those quoted above demonstrate that the petitioner has attracted admirers who enjoy 
his music. The writers offered the general assertion that the petitioner is "prominent " and has earned 
"acclaim" in his field, but the petitioner's initial submission provided no means to establish that the 
petitioner's music has been particularly influential or has had an unusually significant cultural 
impact. 
Other writers are more directly involved in music and entertainment. Professor 
who taught the petitioner at in Argentina, stated that he is "not surprised" 
that the petitioner is "currently developing a distinguished career as a creator and performer, in an 
artistic search oriented to the merger, the tango and the creation of works with avant-garde 
techniques and contemporary concepts." 
identified previously as the director of the stated that, before 
meeting the petitioner , he "was already aware of [his] music because it was broadcast to all 120 
countries where Argentina has embassies, including the United States." Mr. asserted that 
the petitioner is "[ o ]ne of the finest artists to participate in our festival during the past two years ... . 
His mastery of his music, the quality of his compositions, and his noble heart in volunteering to help 
raise money for Argentine schools has made him a much anticipated, trusted and beloved artist." 
Mr. asserted that the petitioner's "musical approach is unique and original. I have not 
heard anything quite like its vibrancy and appeal. I have witnessed the remarkable growth of his 
career both in Argentina and here in the United States." 
international spokesman for the 
stated that the petitioner provided "active support [for] the 
carried out between the years 2009 and 2010." Mr. stated that the petitioner "carried out 
important initiatives in favor of the . " but he did not describe those initiatives except to state that 
the petitioner provided assistance "concem[ing] several of the musical proposals ... frorri different 
countries." Web printouts indicate that the petitioner recorded music video clips to promote the 
Other printouts describing the event are in Spanish without the translations required by the 
regulation at 8 C.P.R. § 103.2(b)(3). 
The letters quoted above attest to the petitioner's skill, originality, and social conscience, but they do 
not explain how the petitioner stands out in a way that would satisfy the special benefit of the 
national interest waiver. By statute, exceptional ability in the arts is not sufficient grounds for the 
waiver, and therefore the petitioner cannot qualify for the waiver simply by establishing a high level 
of ability and skill as a musician , composer and producer. 
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Page 15 
In the May 8, 2013 RFE, the director stated that the petitioner must establish "a past record of 
specific prior achievement with some degree of influence on the field as a whole." The petitioner's 
response to the RFE focused on his exceptional ability claim, although the accompanying cover 
letter contained the claim that "[h]is creation of an original genre, has influenced 
modem Tango music all over the globe." The petitioner submitted no documentary evidence of this 
claimed global influence, but he did submit additional letters, most of them in Spanish with certified 
translations. 
Musician stated: 
[The petitioner] is a professional who is developing a genre uncommon in this 
country. He has, in fact, performed with my ensemble ... one of his musical pieces 
written for a symphony orchestra, interesting for its elegance and originality . 
. . . I cannot say that there is anyone here doing what [the petitioner] is doing in this 
musical genre. That is why I think it would be of tremendous benefit for Americans 
to have him here to impart his knowledge within some institute or university. 
~-------------------
, Italy, stated: 
I am the founder and president of Associazione ' _ an international 
project that organizes workshops and courses for children and young musicians in 
different countries and cities all around the world. 
Based on my experience in the field of music, I can assert that [the petitioner's] talent 
and music make an extraordinary contribution for cultural exchanges and musical 
development of young musicians . 
. . . As an exceptional teacher, [the petitioner] makes a substantial benefit to the 
students by sharing his musical techniques and skills. 
[The petitioner's] specialty in (a particular technique that demands long 
years of hard learning) makes him a unique and rare professional who should be, in 
my opinion, of national interest for the United States of America. This technique is 
appreciated by many musicians all over the world. 
Musician and producer of Barcelona, Spain, who met the petitioner during a 2009 
tour and subsequently collaborated with him, asserted that the petitioner "will go far as an artist and 
attain great heights, not only as a creator and composer, but as an instructor in this area." 
The above writers asserted that the petitioner would benefit the United States by teaching music 
students. While the petitioner claims past experience as a teacher, his initial waiver claim did not 
indicate an intention to teach in the United States. Rather, on Part 6, line 3 of Form I-140, the 
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Page 16 
petitioner indicated that he would "[c]ompose and perform a new, contemporary genre of world 
music called Instructed on line 9 of that same part of the petition form to provide 
his intended work address, the petitioner did not identify any "institute or university." Instead, he 
asserted that he "[p]erforms concerts all over the world." 
The petitioner has not established an influential career as a music teacher, but even if he had, this 
new emphasis on teaching, rather than on composition and arranging, is a significant change from 
his initial assertions. A petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition conform to USCIS requirements. See Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998); see also Matter of Katigbak, 14 I&N Dec. at 49? 
general manager of _ -·-------------------
olivia, stated: 
The artistic journey [the petitioner] is on, as well as his ability to inspire others, will 
most certainly have a tremendous impact on the new generation of American 
musicians. Stimulation of artistic creativity and the possibility of a society more 
musically educated and aware is this composer's distinguishing mark. No one is 
better equipped than him to reach Americans with these ideas. At a time when 
popular music is lacking new forms, I am certain that [the petitioner] will be able to 
ignite the flame with his fusion. 
This composer and guitarist concentrates on a genre that was originally born out of 
the depths of his artistic being which spread out and touched many other people. 
is a musical genre that involves various cultures and at the same time, 
mixes sounds from distinct parts of the world. This is surely a result of the music 
having made the rounds in different countries and cultures. 
In his native Argentina, he has earned the support of the most important artists in the 
history of Argentine music. And in Bolivia, where he was our s ecial guest for 
inauguration of the ~ ~ _ , he filled 
the space with his ecumenical compositions which the people really related to and 
appreciated. 
The letter quoted above provides more detail about the claimed musical significance of 
. but the record contains no documentary evidence to establish the impact that 
has had in the United States. The petitioner has performed in the United States in the past, and his 
recorded music is available internationally, but the record does not show that ' has 
attracted significant attention in the United States or that other artists have adopted the genre. 
3 Also, instruction of individual students Jacks national scope. See NYSDOT, 22 I&N Dec. at 217 n.3. 
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Page 17 
In the November 2013 denial notice, the director acknowledged the petitioner's evidence and 
concluded that the genre of ·'is still in development and its impact [on] the field has 
not been established." 
On ap eal, the petitioner submits additional letters, most of them certified translations from Spanish. 
_ Buenos Aires, was one of the petitioner's university instructors 
and later collaborated with the petitioner on a recording project. Mr. states that 
"has many distinctive features that make it unique within its genre," and "has set important 
musical precedents and started a new trend." Mr. cites no evidence to show that the "new 
trend" is taking hold, or to support his claim that a composition by the petitioner was one of several 
"selected in an international convention to set new music to the National Bar Association's theme 
song." Unsupported claims have no weight as evidence. See Matter of Soffici, 22 I&N Dec. at 165. 
Furthermore, the petitioner has not established that writing a piece of music on commission is 
inherently an important or influential contribution to the arts. 
a piano teacher at the studied 
alongside the petitioner at and has subsequently "worked with him 
several times." Mr 5tates that the petitioner's "contributions to music are so exceptional that 
they surpass other composers in the field. He has made important contributions to tango, which in 
tum have impacted music as a whole." Mr. describes technical aspects of the petitioner's 
music such as time signatures and dissonance, and asserts that the petitioner "had to resort to special 
musical notations ... because no conventions existed for writing many of the specific effects that he 
wanted to play on the instruments." The record does not establish the extent, if any, to which other 
composers have adopted the petitioner's new notations. 
Professor states that 
includes several important innovations, including "heavy inclusion" of the bandoneon ("an 
instrument that has been part of tango for over one hundred years") and "innovations to the way the 
bandoneon is played." Prof. asserted that 'was a semifinalist in the 2012 ... 
. . . , one of the largest composition competitions in the US 
and the world." The petitioner submitted no evidence from the organizers of the competition to 
corroborate this claim. !d. 
Professor 
Argentina, participated in the recording of a album in 2009. Prof. :laimed that 
is "a style which has become widely known for several years and is established as a 
major trend in Argentina and the rest of the world." The record lacks evidence to support this 
assertion. 
The Board of Immigration 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 
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Page 18 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 r&N Dec. 1136 (BrA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. users may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm 'r 1988). However, 
USCIS is ultimately responsible for making the tinal determination regarding an alien's eligibility 
for the benefit sought. ld. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; users may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. users may even give less weight to an opinion that is 
not corroborated, in accord with other information or is in any way questionable. See id. at 795; see 
also Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BrA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). See also Matter of Soffici, 22 I&N Dec. at 165. 
Some of the writers' assertions are uncorroborated claims of fact, whereas others are subjective 
opmwns. A number of writers have asserted that is a significant cultural 
contribution, but the documentary evidence in the record does not establish its claimed impact. The 
petitioner asserts that is essentially a new genre of music, but he has not shown that 
this genre has made a significant place for itself in the musical landscape of the United States. The 
assertion that it will do so in the future is speculation rather than a verifiable assertion of fact. 
The petitioner has not 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." ld. 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."). 
Eligibility for the waiver rests on more than an articulated level of skill or success in a given occupation. 
On the basis of the evidence submitted, the petitioner has not established 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 burden 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.