Date of Decision: September 12, 2022
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: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Advanced Degree: The Petitioner did not dispute the Beneficiary’s qualifications but failed to demonstrate exceptional ability required for the position.
Criteria Not Met:
Work Experience Requirement: The Petitioner did not sufficiently demonstrate that the Beneficiary’s work experience in the last 12 months required exceptional ability.
Notice of Job Opportunity: The Petitioner did not comply with the regulations requiring posting notice of the job opportunity.
Ability to Pay: The Petitioner did not establish that it had the ability to pay the offered salary to the Beneficiary.
Realistic Job Offer: The Petitioner did not establish that the job offered to the Beneficiary was realistic.
Key Points from the Decision
Proposed Endeavor:
The Petitioner aims to classify the Beneficiary as an individual of exceptional ability in the performing arts, specifically as a singer/musician. The Beneficiary is an international recording artist with over 25 years of experience as a singer of Pakistani songs in various musical genres. The proposed endeavor includes performing in the U.S. and continuing to release music.
Substantial Merit and National Importance:
While the Petitioner demonstrated the Beneficiary’s past achievements, it did not provide sufficient evidence that the Beneficiary’s work in the past 12 months required exceptional ability. Furthermore, the evidence did not show that the Beneficiary’s intended work in the U.S. would require exceptional ability or have a substantial impact on the U.S. performing arts scene.
Supporting Evidence:
The Petitioner provided printouts demonstrating the Beneficiary’s Spotify and YouTube channels, evidence of past performances, and promotional materials. However, the evidence did not cover the entire one-year period before the petition was filed or demonstrate that the Beneficiary’s work required exceptional ability during this period. The Petitioner also failed to submit sufficient evidence of the Beneficiary’s employment contracts, payroll, or tax records to support the claim of exceptional ability.
Inconsistencies in Proposed Endeavor:
There were inconsistencies in the evidence provided, such as an undated advertisement with a future date and unclear employment documentation. The Petitioner did not resolve these inconsistencies, which affected the credibility of the overall submission.
Supporting Documentation
Letters of Intent:
Not specified.
Business Plan:
Not applicable.
Advisory Letter:
Advisory letters described the Beneficiary’s expertise but did not establish the exceptional ability required for the proposed endeavor.
Any Other Supporting Documentation:
The Petitioner provided additional documentation, including promotional materials and social media postings, but these did not sufficiently demonstrate the exceptional ability requirement or cover the entire relevant period.
Conclusion
The appeal was dismissed because the Petitioner did not establish that the Beneficiary’s work experience in the past 12 months required exceptional ability. The Petitioner also did not comply with the notice posting requirements, failed to demonstrate the ability to pay the offered salary, and did not establish that the job offer was realistic. Consequently, the Petitioner did not qualify for a national interest waiver.
