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DismissedNational Interest Waiver · Appeal

Musician

Arts, media & sports · decided 2024-08-27 · TSC · AUG272024_11B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding the Petitioner did not establish eligibility for the requested EB-2 immigrant classification. See in text

What the AAO decided

Main reasons given

  • We, therefore, agree with the Director's ultimate conclusion that the Petitioner has not met the requirements for the underlying EB-2 classification.2 The Petitioner's arguments on appeal are insufficient and do not overcome the Director's conclusions. See in text
  • For these reasons, we agree with the Director that the Petitioner did not submit adequate evidence to demonstrate he meets the academic record or professional membership criterion. See in text
  • The Petitioner's bare assertions alone are insufficient to show he meets these criteria. See in text
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  • The Petitioner does not offer any new arguments contesting the Director's findings and, upon our review, we are not persuaded of any error in the Director's determinations that the Petitioner did not satisfy these criteria. See in text
  • Because the Petitioner did not establish the threshold requirement of eligibility for the EB-2 classification, the Director did not reach the issue of the Petitioner's eligibility for a national interest waiver under the Dhanasar framework. See in text
  • We agree with the Director's decision that the Petitioner has not established he satisfies the regulatory requirements for classification as an individual of exceptional ability. See in text
Read the full decision (3 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (2) AAO finding (6)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: AUG. 27, 2024 · In Re: 33349581 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, a musician, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, 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. § 1 l 53(b )(2).

    The Director of the Texas Service Center denied the petition, concluding the Petitioner did not establish eligibility for the requested EB-2 immigrant classification. The matter is now before us on appeal pursuant to 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 Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.

    The Director concluded the evidence did not establish the Petitioner met any of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) to show he is an individual of exceptional ability. On appeal, the Petitioner submits a lengthy brief largely restating the same arguments and evidence already on record.

    industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (D)-(F). See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case). We, therefore, agree with the Director's ultimate conclusion that the Petitioner has not met the requirements for the underlying EB-2 classification.2 The Petitioner's arguments on appeal are insufficient and do not overcome the Director's conclusions. The Petitioner argues that he submitted sufficient evidence to meet the academic record criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the professional membership criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). However, with regard to both of these criteria, he relies, in part, on his descriptions of these organizations in his Request for Evidence response letter to show that the organization issuing his course completion certificates is an institution of learning and that the I is a professional association.

    However, he submits no corroborating evidence to support these claims or otherwise address the Director's concerns. The Petitioner's bare assertions alone are insufficient to show he meets these criteria. He must support his claims with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376.

    In arguing that ____ is a professional association, the Petitioner urges that 8 C.F.R. § 204.5(k)(2) "must be interpreted considering the diversity and specificities of professions, including those in the field of arts, such as music, which do not necessarily require a bachelor's degree for recognition of excellence and exceptional ability." However, this goes against the plain language of the regulation. 8 C.F.R. § 204.5(k)(2) defines "profession" as "one of the occupations listed in section 10l(a)(32) ofthe Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The Petitioner has cited no authority to support his proposed interpretation, and we will not read such an exception into the regulation's plain language. For these reasons, we agree with the Director that the Petitioner did not submit adequate evidence to demonstrate he meets the academic record or professional membership criterion.

    The Petitioner also argues that he demonstrated at least ten years offoll-time experience in the relevant occupation to meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). While he has addressed the Director's concerns related to his periods of overlapping employment, the Petitioner's updated employer letters do not contain sufficient detail about his duties and responsibilities to demonstrate that he has at least ten years of foll-time experience in the relevant occupation proposed here-operating a company conducting music workshops for children and adolescents. The letters are not sufficient to overcome the Director's concerns.

    As for the criteria related to salary at 8 C.F.R. § 204.5(k)(3)(ii)(D) and recognition for achievements and significant contributions to the industry or field at 8 C.F.R. § 204.5(k)(3)(ii)(F), the Petitioner advances the same arguments that were considered and rejected by the Director below. The Petitioner does not offer any new arguments contesting the Director's findings and, upon our review, we are not persuaded of any error in the Director's determinations that the Petitioner did not satisfy these criteria. Because the Petitioner did not establish the threshold requirement of eligibility for the EB-2 classification, the Director did not reach the issue of the Petitioner's eligibility for a national interest waiver under the Dhanasar framework. We agree with the Director's decision that the Petitioner has not established he satisfies the regulatory requirements for classification as an individual of exceptional ability. Since this issue is dispositive of the case, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding his eligibility for a discretionary waiver under the Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general rule 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 D-L-S-, 28 I&N Dec. 568, 577 n.10 (BIA 2022) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). ORDER: The appeal is dismissed.