dismissed EB-2 NIW Case: Sound Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 15, 2024 In Re: 29846549 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a sound engineering technician, seeks classification as a member of the professions 
holding an advanced degree or, in the alternative, as an individual of exceptional ability in the sciences, 
arts or business. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that the Petitioner 
had not established that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. The matter is now before us on appeal. 8 C.F.R. § I03.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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 a member of the professions holding an advanced 
degree 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. 
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). Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that the noncitizen 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 
noncitizen 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. 
See Matter ofDhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
We first note that the record does not support the Director's conclusion regarding second-preference 
eligibility. The Director asserted, "In the instant case, the [P]etitioner submitted evidence with Form 
I-140 which establishes [he] has completed his Bachelor in Business Administration and thus qualifies 
as a member of the professions holding an advanced degree." The Director farther stated, "Therefore, 
at this time, USCIS does not need to evaluate whether the [Petitioner] also qualifies as an alien of 
exceptional ability." The regulations define an "advanced degree" as "any United States academic or 
professional degree or a foreign equivalent degree above that of a baccalaureate." 8 C.F.R. 
§ 204.5(k)(2) ( emphasis added). Although the regulations also contemplate a combination of a 
"United States baccalaureate degree or a foreign equivalent degree followed by at least five years of 
progressive experience in the specialty" as equivalent to an advanced degree, the Director did not 
address whether the Petitioner followed his baccalaureate degree, dated 2015, with at least five years 
of progressive experience in the specialty. Id. The Director erred by concluding that a baccalaureate 
degree alone "qualifies [the Petitioner] as a member of the professions holding an advanced degree." 
See id. Therefore, we withdraw the Director's conclusion that the Petitioner qualifies as a member of 
the professions holding an advanced degree with a baccalaureate degree alone. 
Because we nevertheless find that the record does not establish that a waiver of the requirement of a 
job offer, and thus of a labor certification, would be in the national interest, we reserve our opinion 
regarding whether the Petitioner satisfies second-preference eligibility criteria. See id.; see also 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"); Matter ofL-A-C-, 26 I&N Dec. 
516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
A. Whether the Proposed Endeavor has National Importance 
The Petitioner described thl proposled endeavor as a plan "to own and operate a [ m ]usic [ s ]tudio and 
[p]roduction [ c ]ompany" in Georgia. The Petitioner also stated he would "offer professional 
training courses (in the form of social action), free of charge, to the population in an unfavorable 
socioeconomic situation." The Petitioner submitted a business plan, which elaborates that the 
Petitioner's music studio would "serv[e] the following audiences: gospel singers; new artists on the 
market; independent singers; independent bands." The business plan farther summarizes the music 
studio's services, including audio recording, musical composition and musical arrangement 
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consultation, audio m1xmg and mastering, session musicians, voice-over and automated dialog 
replacement recording, and audio engineering and mixing training sessions. The business plan 
reiterated the Petitioner's assertion that he would provide free lectures and children's music lessons to 
the public. 
The business plan asserts that the music studio would employ a sound engineering technician, a film 
and video editor, an audio and video technician, a camera operator, a receptionist, and two electricians 
in the first year of operation, adding one additional sound engineering technician, audio and video 
technician, and camera operator, and two additional film and video editors by the fifth year of 
operation, for a total of 12 workers, including the Petitioner. The business plan further asserts that it 
would create approximately 42 indirect arts, entertainment, and recreation jobs. 
The extent of the Director's discussion of the first Dhanasar prong is, "The first prong, substantial 
merit and national importance, is met," without further analysis. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [ noncitizen] proposes to undertake." See Matter of Dhanasar, 26 I&N 
Dec. at 889. Dhanasar provided examples of endeavors that may have national importance, as 
required by the first prong, having "national or even global implications within a particular field, such 
as those resulting from certain improved manufacturing processes or medical advances" and endeavors 
that have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Petitioner's proposed endeavor of operating a music studio and production company appears to 
benefit the Petitioner and the clients or customers to whom the Petitioner would provide his services. 
However, the record does not establish how the proposed endeavor of operating a music studio and 
production company inl IGeorgia, may have "national or even global implications" within the 
field of music recording, music composition, or any other field. See id. at 889. Likewise, the record 
does not establish that employing a total of 12 workers, including the Petitioner, inl IGeorgia, 
demonstrates "significant potential to employ U.S. workers or ... other substantial positive economic 
effects, particularly in an economically depressed area." Id. at 889-90. We acknowledge that the 
Petitioner asserts that he will offer some free services to the local public, including lectures and music 
lessons for children. Although the free community services support the conclusion that the proposed 
endeavor has substantial merit, the record does not establish how the proposed endeavor may have the 
type of broader implications contemplated by Dhanasar' s national importance criterion. We have 
reviewed the record in its entirety; however, it does not establish that the proposed endeavor has 
national importance. See id. 
Based on the reasons discussed above, we withdraw the Director's statement to the extent that it 
indicates the proposed endeavor has national importance. Therefore, the record does not satisfy the 
first Dhanasar prong. See id. Because the record does not establish that the proposed endeavor has 
national importance, the remainder of the Dhanasar framework is moot. Nevertheless, we will address 
the denial basis before us on appeal. 
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B. Whether the Petitioner is Well Positioned to Advance the Proposed Endeavor 
Turning to the Director's stated basis for denial, the Director concluded that the record does not 
establish 
the Petitioner is well positioned to advance the proposed endeavor, as required by the second 
Dhanasar prong, specifically because it "fails to demonstrate that the [P]etitioner's work constitutes 
a record of success or progress in his field, or has garnered a degree of interest in his work from 
relevant parties, that would rise to the level of rendering him well positioned to advance his proposed 
endeavor." 
On appeal, the Petitioner reasserts that he has "more than 10 years of work in the music industry." He 
reiterates that he previously operated a production company in Brazil, and he has experience working 
as a sound engineering technician for several Brazilian recording artists and TV and radio soundtracks. 
The Petitioner also summarizes his experience offering music and recording instruction. The record 
does not establish that the Petitioner is well positioned to advance the proposed endeavor, for the 
reasons explained below. 
Dhanasar contemplates four, non-exhaustive, general factors that may demonstrate an individual is 
well positioned to advance a proposed endeavor: "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." Matter ofDhanasar, 26 I&N Dec. at 890. 
Regarding the first factor, the record contains copies of a diploma and an academic transcript written 
in a language other than English, accompanied by certified translations of the documents in English. 
As translated in the record, the diploma indicates that the I lin 
Brazil, granted the Petitioner a bachelor's degree, "given the completion of the Administration 
Course." The diploma is dated December 2015; however, it indicates that the Petitioner completed 
the referenced coursework in June 2015 and he graduated that August. In tum, the academic transcript 
lists the title of "subjects" the Petitioner studied, the courses' "load" value, his attendance percentage, 
an unspecified "average" ranging between "5.00" and "9.00," and a "status" of either "sufficient" or 
"approved." However, the academic transcript-and the remainder of the record-does not elaborate 
on the content of the courses beyond the subject titles, or otherwise provide sufficient information to 
establish what "the completion of the Administration Course" may have prepared the Petitioner to do 
and how well positioned he may be to do it. See id. 
Relatedly, the record contains copies of an affidavit and certificates written in a language other than 
English, accompanied by certified translations of the documents in English. As translated in the 
record, the documents indicate that the Petitioner "was a student of ._____________ __. 
in the free course of piano from February 1998 to February 2000, attending piano practice and theory 
lessons," that he "attended the I I with a course load of eight hours, on September 20, 
~and that he "attended, on January 24-27, 2013, the [w]orkshop 
L___Jwith a course load of "40 hours." Similar to the diploma and academic transcript discussed 
above, the affidavit and certificates-and the remainder of the record-do not elaborate on the content 
of the two-year, eight-hour, and 40-hour courses, respectively, beyond their titles, or otherwise provide 
sufficient information to establish what his attendance in those training courses may have prepared 
him to do and how well positioned he may be to do it. See id. 
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Next, affidavits in the record, as translated in English, assert that the Petitioner "worked as a music 
producer, musician, and arranger (freelancer) at.______ ~company" inl IBrazil, 
since November 30, 2016, up to [July 2022]" and that, simultaneously, he worked as "[a]dministrator, 
music producer, recording technician, and mixing engineer" at.__ ____________ ____.in
I I Brazil, between September 2014 and September 2022. We note, however, that 
neither affidavit clarifies whether the Petitioner worked for both companies on a full-time or part-time 
basis, and we take administrative notice that.________________ ___, Brazil, are 
approximately 300 miles apart, casting doubt regarding the extent to which the Petitioner performed 
his responsibilities at both locations simultaneously. Doubt cast on any aspect of a petitioner's proof 
may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). Without more, the doubt cast regarding 
the extent to which the Petitioner performed his responsibilities simultaneously at two locations 
approximately 300 miles apart undermines the reliability and sufficiency of the work experience 
affidavits, and of the remaining evidence in the record. See id. Accordin 1 , the record does not 
establish the extent to which the Petitioner's ex erience workin at company inD 
I l Brazil, and at.______________________ __. Brazil, prepares 
him to advance the proposed endeavor. See Matter ofDhanasar, 26 I&N Dec. at 890. 
Regarding the second factor, we acknowledge that the record contains a business plan, discussed 
above. However, the plan provides minimal probative information regarding the Petitioner's model 
or plan for future activities. Instead, the document primarily provides generalized information 
regarding the music recording industry and small businesses, and it summarizes the Petitioner's 
qualifications and experience. 
Even to the extent that the business plan addresses the Petitioner's model or plan for future activities, 
it contains arbitrary, unsubstantiated, contradictory, or otherwise implausible, material information 
that casts doubt on its reliability and sufficiency. Specifically, the business plan provides estimates to 
anticipate total revenue of $8,641,639.20 within the first five years of operation; however, the 
estimated growth is arbitrary, unsubstantiated, and contradictory. The plan expects "audio recording," 
"musical composition and musical arrangements," "mixing and mastering," "session musicians," and 
"voice-over and ADR" revenue to grow at a multiplier of 1.35 each year, whereas "training" revenue 
would grow at a multiplier of 1.2 each year. The plan does not establish why it expects steady growth 
of 35% in five of its six revenue categories for each of its first five years of operation, but only 20% 
growth in the sixth category, as opposed to 20% growth in all six categories, 35% growth in all six 
categories, or any other projected growth trend. Moreover, the business plan separately indicates 
overall annual growth declining from 35% between the first two years of operations, 25% between the 
second and third years, 15% between the third and fourth years, to only 5% between the fourth and 
fifth years; however, the annual revenue for the first five revenue categories increases by a multiplier 
of 1.35 each year, directly contradicting the stated decline in annual growth from 35% to 5%. 
Regardless of the arbitrary, unsubstantiated, and contradictory growth projections, the business plan's 
baseline used to calculate its revenue specifically requires a constant income beginning at the rate of 
$400 per hour, eight hours per day, 22 business days per month. This calculation erroneously 
anticipates 264 (22 * 12) business days per calendar year; however, to meet the revenue goals, the 
company would need to operate at the same capacity on at least three weekend days plus additional 
weekend days to offset government, cultural, and religious holidays falling on weekdays. Moreover, 
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even if the business plan reasonably calculated the number of business days on which the recording 
studio would operate, the revenue baseline (and the growth projections) assume that the business 
would be in operation for a foll eight hours each business day, without factoring cancellations or 
periods during which no customers or clients would use the studio's services. The record does not 
establish why this level of constant revenue, beginning with the first day of the first year of operation, 
without interruption for five years, is plausible. 
We farther note that the business plan acknowledges that at least 20 nearby competitors already 
provide the services the Petitioner's company would provide; however, the plan does not establish 
why it asserts the proposed endeavor would generate more than $8 million within the company's first 
five years of operation, despite at least 20 nearby competitors already providing those services to the 
customer base. 
For the reasons discussed above, the arbitrary, unsubstantiated, contradictory, or otherwise 
implausible, material information in the business plan casts doubt on its reliability and sufficiency, 
and, consequently, on the reliability and sufficiency of the remaining evidence in the record. See 
Matter ofHo, 19 I&N Dec. at 591. Therefore, the record does not establish that the Petitioner's model 
or plan for future activities indicates that he is well positioned to advance the proposed endeavor. See 
Matter ofDhanasar, 26 I&N Dec. at 890. 
Regarding the third factor, the record does not establish what progress toward achieving the proposed 
endeavor the Petitioner may have made. For example, neither the business plan, discussed above, nor 
the remainder of the record identifies the proposed name of the Petitioner's recording studio, in order 
to confirm whether the Petitioner has even registered to do business in the State of Georgia, as 
described in the record, or whether he otherwise made progress toward achieving the proposed 
endeavor. See id. We note in particular that the Petitioner apparently plesently resides in Florida, a 
substantial distance away from the proposed business location of Georgia. 
Finally, we acknowledge that the record, including information submitted on appeal, contains letters 
of interest from various individuals or organizations. However, the letters that express interest in 
receiving the Petitioner's services are dated after the Petitioner filed the Form 1-140, Immigrant 
Petition for Alien Workers, in November 2022. A petitioner must establish eligibility for the benefit 
it is seeking at the time the petition is filed. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved based on speculation of future eligibility or after a petitioner becomes eligible under a new 
set of facts. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Whether 
individuals or organizations are interested in receiving the Petitioner's services is material because it 
is expressly contemplated as a factor in the second Dhanasar prong. See Matter ofDhanasar, 26 I&N 
Dec. at 890. Because the letters that express interest in receiving the Petitioner's services are dated 
after the Petitioner filed the Form 1-140, they present a new set of material facts that cannot-and do 
not-establish eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter ofKatigback, 14 I&N Dec. at 
49; Matter ofIzwnmi, 22 I&N Dec. at 176. The record does not otherwise establish that the Petitioner 
has received interest of potential customers, users, investors, or other relevant entities or individuals 
that may indicate he is well positioned to advance the proposed endeavor. See Matter ofDhanasar, 
26 I&N Dec. at 890. 
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In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. As 
a separate basis of ineligibility, because the record does not establish the Petitioner is well positioned 
to advance the proposed endeavor, as required by the second Dhanasar prong, he is not eligible for a 
national interest waiver. We reserve our opinion regarding whether the record satisfies the third 
Dhanasar prong. See Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 
n.7. As noted above, we also reserve our opinion regarding whether the record establishes the 
Petitioner is eligible for second-preference classification. See id. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, in 
addition to the requisite second prong, we conclude that the Petitioner has not established eligibility 
for, or otherwise merits, a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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