dismissed EB-2 NIW Case: Sound Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 7921020 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 3, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a sound designer, seeks second preference 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 EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that she had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits a brief asserting that she is eligible for a national interest waiver. 
In these 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. Upon de nova 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203 (b) of the Act sets out this sequential framework: 
(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 ofjob offer-
(i) National interest waiver. ... [T]he 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. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign 
national's proposed endeavor has both substantial merit and national importance; (2) that the foreign 
national is well positioned to advance the proposed endeavor; and (3) 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 first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the 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, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCTS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of 
the requirement of a job offer, and thus a labor certification, would be in the national interest. 
The regulation at 8 C.F.R. § 204.5(k)(4)(ii) states, in pertinent part, "[t]o apply for the [national 
interest] exemption the petitioner must submit Form ETA-750B, Statement of Qualifications of 
Alien." The denial decision stated that the Petitioner did not provide "a properly completed 
Application for Alien Employment Certification (Form ETA-750B) or Application for Permanent 
Employment Certification (ETA Form 9089), Parts J, K, and L. Therefore, since the petitioner did not 
submit this required evidence, USCIS must deny the Form I-140." At the time of filing, however, the 
Petitioner offered a properly signed and executed Form ETA-750B. Accordingly, the Director's 
finding on this issue is withdrawn. 
Regarding the Petitioner's claim of eligibility under Dhanasar's first prong, she indicated that her 
proposed endeavor involves working as a sound designer. The Petitioner further explained: 
Sound design is the art of producing sound for theatrical and other productions. Sound 
designers are responsible for everything the audience hears during a performance. Music 
and sound effects are essential to the success of a performance, as music and sounds help 
convey the various emotional, atmospheric, and situational events depicted in a 
performance, and connect the audience to the production. This applies to theater, film, 
and television productions. These forms of production are vital to United States culture, 
as much of our identity as Americans is rooted in and reflected by theater, film, and 
television. 
With res ect to her proposed work, the Petitoner asserted that she "is currently working on a play, entitled 
~-------d;;;.;-irected byl I' In addition, the record includes a November 2018 
letter from a sound desi "I've recommeded the hiring of [ the Petitoner] for two 
projects: (assistant sound designer) and I I 
~~--~with~ ____ ....._ ________ ___, heater Workshop (substitute front of house 
engineer)." The Petitioner also provided a July 2018 letter of agreement fro~~--.,......,..---,-~~' general 
manager ofl l engaging the Petitoner' s services as "assistant sound designer" for the 
play, entitled'! 1"4 Furthermore, the record contains an October 2018 letter 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for her to have a job offer from 
a specific employer. However, we will consider information about her prospective positions to illustrate the capacity in 
which she intends to work in order to determine whether her proposed endeavor meets the requirements of the Dhanasar 
analytical framework. 
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froml I a musician and sound designer, indicating that the Petitioner "has been observing 
me on numerous ro · ects over the past year including I I at the I l I Jal 
and I I at I . 0 ~' all of which are off-Broadway theatres in CJ 
"r----- ..... ,,....,,.5-F_i_n_a-lly-,~the Petitioner provided a March 2019 letter from~ School of Drama informing 
her of her acceptance as a student to its Sound Design department for the 2019-2020 academic year. 
The record contains information from the U.S. Bureau of Labor Statistics about "Music Directors and 
Composers" and "Broadcast and Sound Engineering Technicians" discussing their job functions, work 
environment, education and training requirements, pay, and job outlook. Additionally, the Petitoner 
provided an article, entitled "What is a sound designer for theatre?" from the Association of Sound 
Designers. This article explains that a theatre sound designer is responsible for everything the audience 
hears at a production, including sound effects, music, and acoustics. While this documentation shows the 
substantial merit of the Petitioner's proposed sound design work, for the reasons discussed below, she 
has not sufficiently demonstrated the national importance of her proposed endeavor under the first 
prong of the Dhanasar analytical framework. 
In determining national importance, the relevant question is not the importance of the profession or 
industry in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[ a ]n undertaking 
may have national importance for example, because it has national or even global implications within 
a particular field." Id. We also stated that"[ a ]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance, may well be understood to have national importance." Id. at 890. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of her work. Although the 
Petitioner's documentation reflects her intention to provide valuable sound design services for various 
theatrical productions, she has not offered sufficient information and evidence to demonstrate that the 
prospective impact of her proposed endeavor rises to the level of national importance. In Dhanasar 
we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. Here, we find the record 
does not show that the Petitioner's proposed endeavor stands to sufficiently extend beyond her local 
and off-Broadway productions to impact the field of sound design or the theatre industry more broadly 
at a level commensurate with national importance. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to her future work, the record does not show that benefits to the U.S. 
regional or national economy resulting from the Petitioner's projects would reach the level of "substantial 
1 I indicated that that the Petitioner "reached out to me to ask if she could observe me while I worked on various 
productions. Although [the Petitioner] did not have a lot of background in theatre, she was keenly interested in learning 
more about the process and how sound design is an integral part of that experience .... [The Petitioner] is a very quick 
study in terms of learning the equipment necessary to work in sound design, and is progressing well in terms of applying 
her previous knowledge of music and sound to the task of creating specific work in a theatre environment." 
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positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's 
proposed work does not meet the first prong of the Dhanasar framework. Because the documentation 
in the record does not establish the national importance of her proposed endeavor as required by the first 
prong of the Dhanasar precedent decision, the Petitioner has not demonstrated eligibility for a national 
interest waiver. 
In addition, with respect to the third prong of the Dhanasar framework, the Petitioner has not 
demonstrated 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 denying the petition, the Director concluded that the 
Petitioner did not meet this prong because the record did "not persuasively establish that the Petitioner 
has had a substantial impact in the field." In addition, the Director stated that "the opinions of experts 
in the field" were insufficient to demonstrate that the Petitioner warrants a national interest waiver, 
but the denial decision did not elaborate on any specific concerns relating to her reference letters. We 
note that while the Petitioner's sound design contributions and the national interest in these 
contributions are relevant factors for consideration under prong three of the Dhanasar framework, 
there is no requirement that a petitioner demonstrate "a substantial impact in the field" in order to 
satisfy this prong. The Director's prong three analysis was also problematic as it did not consider the 
Petitioner's argument that her "skills cannot be articulated through a labor certification" because of 
"the uniqueness or her particular talents." 
On appeal, the Petitioner maintains that as a "sound designer, a job offer and labor certification would 
be impractical. [The Petitioner] works on a project to project basis, as her talents are sought after by 
a variety of producers and artists." Assuming her sound design skills and talents are unique, the benefit 
these skills and talents stand to offer our country must outweigh the protections afforded to U.S. workers 
inherent in the labor certification process. Id. at 890. 
While the record indicates that the Petitioner has shadowed! I and gained additional experience 
as an assistant sound designer for a few small theatrical productions, she has not demonstrated the 
extent to which the United States will benefit from her artistic projects. Additionally, the Petitioner 
has not shown that the national interest in her sound design work is sufficiently urgent to warrant 
foregoing the labor certification process. Regarding the Petitioner's enrollment inc=]School of 
Drama for the 2019-2020 academic year, the record does not include evidence of the Petitioner's 
upcoming theatrical projects at c=Jor other information about the specific sound design work she 
plans to undertake while attending that university. 6 Nor has she demonstrated that, assuming other 
qualified U.S. sound designers are available, our country would benefit from her particular projects in 
the performing arts. After considering the impracticality of labor certification due to her unique skills 
and her work "on a project to project basis," the evidence relating to the benefit to the United States 
resulting from her performing arts productions, potential job creation associated with her proposed 
endeavor, and whether the national interest in her work is sufficiently urgent to warrant foregoing the 
labor certification process, the Petitioner not established that she offers contributions of such value 
that, on balance, they would benefit the United States at a level sufficient to warrant a waiver of the 
requirements of a job offer and thus of a labor certification. 
6 In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national proposes to 
undertake." Id. at 889. 
5 
III. CONCLUSION 
As the Petitioner has not met the requisite first and third prongs of the Dhanasar analytical framework, 
we find that she has not established she is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. 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. 
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