dismissed EB-2 NIW Case: Religion And Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 18, 2024 In Re: 30113832 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an ordained minister, a musician, and a piano player, seeks employment-based second 
preference (EB-2) immigrant classification as a member of the professions holding an advanced degree 
as well as a national interest waiver of the job offer requirement attached to this classification. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's proposed endeavor has national importance and that that, on balance, it 
would be beneficial to the United States to waive the requirements of a job offer, and thus of a labor 
certification. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate . 8 C.F.R. § 204.5(k)(2). A U .S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
"Profession" means one of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. § 
1101(a)(32), 1 as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2). 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
"Exceptional ability" in the sciences, arts, or business means a degree of expertise significantly above 
that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner 
must initially submit documentation that satisfies at least three of six categories of evidence. See 8 
C.F.R. § 204.5(k)(3)(ii)(A)-(F). 2 Meeting at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. We will then conduct a final merits determination to decide 
whether the evidence in its totality shows that they are recognized as having a degree of expertise 
significantly above that ordinarily encountered in the field. 3 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) 
may, as a matter of discretion, 4 grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas, such 
as business, entrepreneurialism, science, technology, culture, health, or education. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their education, skills, knowledge, and record of success in related or similar efforts; a 
model or plan for future activities; any progress towards achieving the proposed endeavor; and the 
interest of potential customers, users, investors, or other relevant entities or individuals. Id. at 890. 
The third prong requires a petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer, and thus of a labor certification. In performing 
this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
2 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-5. 
4 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
2 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factors considered must, taken together, establish that, on balance, it would be 
beneficial to the United States to waive the requirements of a job offer, and thus of a labor certification. 
Id. at 890-91. 
II. ANALYSIS 
The Petitioner proposed to work in the United States as a religious education director and a pastor and 
start a musical church inl IPennsylvania. 
A. EB-2 Visa Classification 
As indicated above, the Petitioner must first demonstrate qualification for the underlying EB-2 visa 
classification as either an advanced degree professional or an individual of exceptional ability in the 
sciences, arts, or business. See Section 203(b )(2)(B)(i) of the Act. The Petitioner claimed eligibility 
for the EB-2 visa classification as an advanced degree professional. The Director determined that the 
Petitioner qualifies for the EB-2 visa classification as an advanced degree professional because she 
possesses a foreign equivalent degree of a bachelor's degree in the United States. However, the record 
does not show that the Petitioner has five years of progressive experience in the specialty sought by 
the Petitioner. See 8 C.F.R. § 204.5(k)(2). 
The Petitioner presented her diploma and transcript from the named after 
I in Uzbekistan, which shows that she completed her studies in piano from 
2007 to 2010 at the music college and received a diploma in piano in 2010. A credential evaluation 
report prepared by Virtuoso Evaluations indicates that the diploma from the music college 1s 
equivalent of an associate of arts in music granted by an accredited university in the United States. 
The Petitioner also presented her diploma, certificate, and transcript from 
which shows that she completed her biblical studies at the university 
from 2017 to 2022 and received a certificate in biblical studies and a diploma in biblical and 
theological studies in 2022. The record shows that the Petitioner possesses a U.S. baccalaureate degree 
in biblical and theological studies. 
The Petitioner provided a certificate from the chairman ofl Iwhich states that the Petitioner 
worked as an administrator at Society of Social Mutual Assistance for People with Disabilities 
I I from 2014 to 2016, a period of three years. This certificate does not show that the 
Petitioner has progressive experience in the specialty after obtaining her bachelor's degree in 2022. 
The regulation at 8 C.F.R. § 204.5(k)(2) states that a U.S. baccalaureate degree or a foreign equivalent 
degree followed by five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. Therefore, 8 C.F.R. § 204.5(k)(2) requires a petitioner to have the 
five years of progressive experience after obtaining a bachelor's degree. 
Although the Petitioner holds a U.S. baccalaureate degree, she has not established that she has five 
years of progressive experience in the specialty after obtaining her bachelor's degree in 2022. 
3 
Accordingly, she is not eligible for the EB-2 visa classification as a member of the professions holding 
an advanced degree. 
At the time of filing her petition, the Petitioner did not claim eligibility for the EB-2 visa classification 
as an individual of exceptional ability. On appeal, the Petitioner does not claim eligibility for the EB-
2 visa classification as an individual of exceptional ability and does not present supporting evidence. 
Therefore, we need not reach a decision on whether the Petitioner is eligible for the EB-2 visa 
classification as an individual of exceptional ability, and we will reserve this issue for future 
consideration should the need arise. 5 
B. National Interest Waiver 
The Director determined that the Petitioner's proposed endeavor to work as a religious director and a 
pastor has substantial merit and that the Petitioner is well positioned to advance the proposed endeavor. 
But the Director determined that the evidence did not sufficiently demonstrate that the Petitioner's 
proposed endeavor has national importance and that, on balance, it would be beneficial to the United 
State to waive the requirements of a job offer, and thus of a labor certification. 
On appeal, the Petitioner contends that her proposed endeavor is of national importance and that she 
presents benefits to the United States through her proposed endeavor that outweigh those inherent in 
the labor certification process. 
The Petitioner asserts that her proposed endeavor to work as a religious leader and a pastor in the 
United States has significant potential to employ U.S. workers and support the local workforce 
because she will hire an administrative assistant who will manage the church's daily operations and 
an accountant who will handle financial tasks for the church. To support this claim, the Petitioner 
provides summary on secretaries and administrative assistants, a job posting for a church 
administrative assistant at a church in California, employment and wage statistics for religious 
workers in the United States, and the beginner's guide to accounting for churches from various 
websites. 
While the submitted documents provide general information about secretaries and administrative 
assistants, basic information about accounting for churches, and employment and wage statistics for 
religious workers in the United States, they do not demonstrate how hiring an administrative assistant 
and an accountant will offer substantial positive economic effects for our nation. The Petitioner has 
not offered sufficient evidence that her church would employ a significant population of workers in 
an economically depressed area or that her endeavor would offer a particular U.S. region or its 
population a substantial economic benefit through employment levels or business activity. Nor has 
the Petitioner demonstrated that any increase in the church's revenue attributable to her services as a 
religious leader and a pastor stands to substantially affect economic activity regionally or nationally. 
In Dhanasar, we stated that an endeavor that has significant potential to employ U.S. workers or has 
other substantial positive economic effects, particularly in an economically depressed area, for 
5 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
4 
instance, may well be understood to have national importance. See Dhanasar, 26 I&N Dec. at 890. 
In addition, the Petitioner asserts that her proposed endeavor as a religious director will broadly 
enhance societal welfare because she plans to establish a food bank, organize food drives, or partner 
with local organizations to distribute food to those in need in the community. The Petitioner further 
states that by preventing food waste and ensuring that nutritious food stays within the community 
instead of ending up in landfills, her proposed endeavor will make a significant impact on the 
environment and the well-being of individuals facing food insecurity. To support this claim, the 
Petitioner submits information about the United States Department of Agriculture's emergency food 
assistance program, an article about reducing wasted food by feeding hungry people, a report that 
discusses the significant role faith-based nonprofit institutions play in promoting the health and well­
being of their communities through food, articles about food insecurity and hunger, and an article 
about food security, chronic disease, and health among adults, and a report on the contributions of 
faith-based organizations in community development. 
These articles and reports support that food assistance programs provided by the U.S. government, 
churches, or other faith-based organizations reduce food waste and promote the health and well-being 
of individuals facing food insecurity. However, the Petitioner has not shown how her proposed 
endeavor to establish a food bank or organize food drives and distribute food to those in need in the 
community would make a significant impact on the environment more broadly or on the health and 
well-being of the U.S. population more broadly rather than benefiting those in need in the community 
and who will be served by the Petitioner's church. In Dhanasar, we indicated that we look for broader 
implications of the proposed endeavor and that an undertaking may have national importance, for 
example, because it has national or even global implications within a particular field. See id. at 889. 
The Petitioner further claims that her proposed endeavor as a church director will help women recover 
from physical, emotional, or sexual abuse or alcohol or drug addictions because she plans to establish 
a faith-based recovery center. She adds that she will create a support system that will help Americans 
navigate the challenges of recovery through support groups, mentorship programs, and peer support 
network. She states that she can secure fonding to support the recovery center's operations by 
partnering with the Substance Abuse and Mental Health Services Administration (SAMHSA), a 
government agency in the United States that is dedicated to advancing behavioral health, and 
assessing grants. She contends that this proposed endeavor will benefit individuals struggling with 
addictions, alleviate the burden on government resources, and contribute to the overall economic 
well-being of the country. The Petitioner asserts that her proposed endeavor in helping Americans 
suffering from drug and substance abuse is of national importance because it aligns with the 
SAMHSA's faith-based and community initiatives and because drug and substance abuse in America 
is a widespread issue that affects people from all walks of life. To support this claim, the Petitioner 
provides a study on substance abuse, religion, and spirituality, drug abuse statistics in the United 
States, Tennessee's faith-based initiatives to address drug addictions in the state, and an article about 
a faith-based addiction treatment program. 
While these study and articles provide the benefits of a faith-based addiction treatment program, the 
Petitioner has not provided sufficient information and evidence to demonstrate the prospective impact 
of her proposed endeavor rises to the level of national importance. We acknowledge that drug and 
substance abuse is a widespread serious issue in the United States and that religion and spirituality 
5 
play a powerful role in preventing and treating substance abuse and maintaining sobriety. However, 
in determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work. Instead, we focus on the specific endeavor that the 
foreign national proposes to undertake. See id. As such, the Petitioner must demonstrate by a 
preponderance of the evidence that her proposed endeavor to establish a faith-based recovery center 
and help women recover from physical, emotional, or sexual abuse or alcohol or drug addictions is of 
national importance. The Petitioner has not shown that her proposed endeavor would impact the 
mental health industry more broadly or would provide a solution to the current drug and substance 
abuse problems in the United States rather than benefiting her patients or clients who will be served 
by her recovery center. Unfortunately, without sufficient documentary evidence of its broader impact, 
the Petitioner's proposed work does not meet the national importance element of the first prong of the 
Dhanasar framework. 
Because the documentation in the record does not sufficiently demonstrate the national importance of her 
proposed endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has 
not established eligibility for a national interest waiver. Therefore, further analysis of her eligibility under 
the second and third prongs outlined in Dhanasar, would serve no meaningful purpose, and we will 
reserve these issues for future consideration should the need arise. 6 
III. CONCLUSION 
The Petitioner has not demonstrated qualification for the underlying EB-2 visa classification as either 
an advanced degree professional or an individual of exceptional ability in the sciences, arts, or 
business. Moreover, the Petitioner has not established by a preponderance of the evidence that, as a 
matter of discretion, she is eligible for or otherwise merits a national interest waiver because she has 
not shown that her proposed endeavor is of national importance. 
The appeal will be dismissed for the above-stated reasons, with each considered as an independent 
and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6 See INS v. Bagamasbad, 429 U.S. at 25 ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. at 526 n.7 (declining to reach 
alternate issues on appeal where an applicant is otherwise ineligible). 
6