Date of Decision: November 23, 2021
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Performing Arts
Petitioner Information
Profession: Singer/Musician
Field: Performing Arts
Nationality: Pakistani
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Published Material and Playbills: The petitioner submitted evidence, including published material and playbills, demonstrating the Beneficiary’s exceptional ability as a singer/musician.
Criteria Not Met:
- Work Requiring Exceptional Ability: The petitioner did not establish that the Beneficiary’s work during the year prior to filing the petition required exceptional ability, nor did it prove that the intended work in the United States would require exceptional ability.
- Notice of Job Opportunity: The petitioner failed to comply with regulations requiring proper posting of the job opportunity.
- Ability to Pay the Proffered Wage: The petitioner did not establish its ability to pay the offered salary to the Beneficiary.
- Bona Fide Job Offer: The petitioner did not establish that the job offered to the Beneficiary was bona fide.
Key Points from the Decision
Proposed Endeavor:
The petitioner proposed to employ the Beneficiary as a singer/musician, with the job requiring performances at concerts in the United States and Pakistan.
Substantial Merit and National Importance:
The petitioner demonstrated the Beneficiary’s substantial merit and national importance through his past achievements and acclaim in the performing arts.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
The petitioner argued that the Beneficiary’s work would benefit the United States by enhancing its cultural landscape. However, the petitioner did not provide sufficient evidence to justify waiving the labor certification process.
Supporting Evidence:
The petitioner submitted the Beneficiary’s curriculum vitae, academic credentials, published articles, and letters of support. However, these documents did not adequately demonstrate the Beneficiary’s current exceptional ability or the necessity of his work requiring such ability.
Inconsistencies in Proposed Endeavor:
The petitioner’s documentation did not sufficiently establish that the Beneficiary’s recent work required exceptional ability. Additionally, the Beneficiary’s most acclaimed song was released in 1993, and the record did not demonstrate his current exceptional ability.
Supporting Documentation
Letters of Intent:
Not applicable.
Business Plan:
Not provided or summarized in the decision.
Advisory Letter:
Provided but not sufficiently detailed to support the claim of national importance.
Any Other Supporting Documentation:
Included letters from colleagues and professionals, which praised the Beneficiary’s work but did not adequately demonstrate his significant impact in the field of performing arts.
Conclusion
Final Determination: The appeal was dismissed.
Reasoning: The petitioner did not meet the criteria for demonstrating that the Beneficiary’s work during the last year required exceptional ability or that the intended work in the United States would require exceptional ability. Additionally, the petitioner failed to comply with the posting requirements for the job opportunity, did not establish the ability to pay the offered wage, and did not prove the job offer was bona fide.
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