remanded EB-2 NIW Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 10066460 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 19, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a pianist , 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 
1) established that a waiver of the required job offer, and thus of the labor certification , would be in 
the national interest and 2) submitted a properly completed Form ET A 750B, Application for Alien 
Employment Certification, or parts J, K, and L of Form ETA 9089, Application for Permanent 
Employment Certification, as required by 8 C.F.R. § 204.5(k)(4)(ii). 
On appeal, the Petitioner submits additional documentation and a brief asserting that the Beneficiary 
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 withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification ( emphasis added), 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, to demonstrate eligibility as an individual of exceptional ability, a petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, 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 
2 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a 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. 3 
II. ANALYSIS 
The Petitioner is a pianist and her proposed endeavor is I I music concert performance." In this 
matter, the Director determined that the Beneficiary qualifies as a member of the professions holding an 
advanced degree and that her proposed endeavor has substantial merit, but concluded that she did not 
meet any of three prongs set forth in the Dhanasar analytical framework. 
As an initial matter, we must address three issues. First, after the initial filing was rejected, the Petitioner 
did submit a signed Form ETA 9089 with Parts J, K, and L completed. 8 C.F.R. § 204.5(k)(4)(ii). 
Accordingly, we withdraw the Director's finding on this issue. Second, while we agree with the Director 
that "the submission of a single translation certification that does not specifically identify the document 
or documents it purportedly accompanies does not meet the requirements of the regulation at 8 C.F.R. 
§ 103 .2(b )(3 )," we note that even if we were to consider these two awards, 4 they would not alter our 
ultimate conclusion. Third, the Petitioner has the burden of proof to establish eligibility for the requested 
benefit at the time of filing. See 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. 45, 49 
( Comm'r 1971) (providing that "Congress did not intend that a petition that was properly denied because 
the beneficiary was not at that time qualified be subsequently approved at a future date when the 
beneficiary may become qualified under a new set of facts."). Therefore, we will not consider evidence, 
such as the Beneficiary's job offer to be an accompanist for her alma mater, that occurred after the date 
of filing. 
As noted above, the Director concluded that the Petitioner qualifies for EB-2 classification as a member 
of the professions holding an advanced degree. However, the Petitioner must establish that she not only 
holds a qualifying advanced degree ( or the equivalent), but also that she is a member of the professions 
as defined by section 101(a)(32) of the Act and 8 C.F.R. § 204.5(k)(2). Here, section 101(a)(32) of the 
Act does not include pianists or musicians in the list of professions, and the Petitioner has not 
established that a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for 
entry into the occupation, as required by 8 C.F.R. § 204.5(k)(2). Accordingly, we withdraw the 
Director's finding on this issue and remand the matter to the Director to determine anew whether the 
Petitioner qualifies for EB-2 classification. 
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). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The awards were from 2~10 {Pianr-1 0 I category- 2nd Prize -l !Music Competition) and 2011 (Piano -
I I University - 1st prize -1 I Music Competition). 
3 
Regarding the Petitioner 's rema1mng claim of eligibility under Dhanasar's fust prong , national 
importance , we agree with the Director's conclusion . The relevant question is not the importance of 
the field, industry , or profession in which the individual will work. Instead , we focus on the "the 
specific endeavor that the foreign national propose s to undertake ." See Dhanasar, 26 I&N Dec. at 
889. In Dhanasar , we further explained that "we look for broader implication s" 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. worker s 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 statements reflect her intention to promot e a valuabl e cultural art form in the United States, 
she has not offered sufficient information and evidence to demonstrate that the prospective impact of 
her propo sed 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. Similarly , the record in this matter does not 
demonstrate that the Petitioner 's proposed endeavor stands to sufficiently extel d beyol d her 
immediate audience such that it would impact U.S. cultural interests or our country's music 
industry more broadly at a level commensurate with national importance . 
Furthermore , while the Petitioner asserted that hd lmusic works can be applied to increase the 
competiti veness of the American econom y by producing and exporting more intellectual property 
products to the world ," she has not provided sufficient evidence to support such a conclusory 
statement. In addition , she has not demonstrated that her specific proposed endeavor has significant 
potential to employ U.S. workers or otherwise offer 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 positive 
economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner' s propo sed work 
does not meet the first prong of the Dhanasar framework. 
For the reasons discussed above, we are remanding the petition for the Director to consider whether the 
Petitioner qualifies for EB-2 classification , the threshold determination in national interest waiver 
cases . The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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