Date of Decision: MAY 4, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Music Performance
Petitioner Information
Profession: Cellist
Field: Music Performance
Nationality: Uzbekistan
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
Substantial Merit of Proposed Endeavor:
The Petitioner established that the proposed endeavor has substantial merit. The Petitioner’s work involves performing with the orchestra, teaching music both privately and within institutions, and creating a cello quartet blending Uzbek folk music with American genres.
Criteria Not Met:
National Importance:
The Petitioner did not sufficiently demonstrate the national importance of the proposed endeavor. The strategic plan from the National Endowment for the Arts submitted did not specifically address the Petitioner’s contributions or endeavor.
Well-Positioned to Advance the Proposed Endeavor:
The Petitioner failed to show that he is well-positioned to advance the proposed endeavor. There was insufficient evidence of the Petitioner’s qualifications for a faculty position, and the progress towards establishing the cello quartet was not adequately demonstrated.
Key Points from the Decision
Proposed Endeavor:
The Petitioner’s proposed endeavor includes continuing to perform with the orchestra, teaching music, and creating a cello quartet that blends Uzbek folk music with American genres.
Substantial Merit and National Importance:
The Director concluded that while the Petitioner’s proposed endeavor has substantial merit, it does not meet the criteria for national importance. The general importance of the arts, as indicated by the National Endowment for the Arts’ strategic plan, was not sufficient to establish the specific national importance of the Petitioner’s work.
Supporting Evidence:
The Petitioner provided letters from other musicians, a strategic plan from the National Endowment for the Arts, and evidence of prior performances and awards. However, these were not sufficient to establish the national importance or the Petitioner’s position to advance the endeavor.
Inconsistencies in Proposed Endeavor
The Petitioner introduced a new model of improvisation in response to the RFE, which was considered a material change rather than a clarification. This new model was not mentioned in the initial submission and hence did not meet the eligibility requirements at the time of filing.
Supporting Documentation
Letters of Intent:
Several letters from musicians were provided, but they did not mention the new improvisation model introduced later.
Business Plan:
No specific business plan was provided.
Advisory Letter:
Letters from musicians and colleagues were included but did not adequately support the Petitioner’s claims regarding the national importance of his work.
Conclusion
Final Determination: The appeal is dismissed.
Reasoning:
The Petitioner did not establish the national importance of the proposed endeavor or that he is well-positioned to advance it. Additionally, the new improvisation model introduced in response to the RFE was a material change and not a clarification.
