NIW Bearings
dismissedMAY042023_02B52032023-05-04 · appeal · Texas Service Center

This is an AAO appeal decision — a case denied once and appealed. It shows how the framework is applied; it is not the filing population.

The Petitioner, a cellist, proposed to continue performing with an ensemble, teach music privately and as faculty at an institution, and form a cello quartet blending Uzbek folk music with American genres, later adding a claimed hybrid improvisation model.

Field: music (cello performance) · Read the decision (uscis.gov)

EB-2 threshold — not met

AAO found the Director correctly determined the record did not establish that the Petitioner's occupation requires a bachelor's degree, but reserved this issue since the NIW analysis was dispositive.

Prong 1 — national importanceestablished

Prong 2 — well positionednot established

“The Petitioner did not submit enough information and evidence to show that he is well-positioned for a faculty job.”
“The Petitioner did not specify the type of institution where he seeks to teach, or establish that he holds the necessary credentials and training to qualify for such a position.”
“The Petitioner also did not establish what progress, if any, he had made toward establishing the quartet he initially described.”
“The Petitioner's discussion of a new hybrid improvisation model appears to be a material change to his proposed endeavor, rather than a clarification of the proposed endeavor as originally described.”

AAO decision text

Prong 3 — balance of factorsnot established · dispositive

“The claim that the Petitioner would have qualified under Schedule A does not imply eligibility for the different benefit he seeks in this proceeding.”
“The Petitioner's claim is not only speculative, but it relies upon a misreading of the regulations.”
“The Petitioner's evidence shows considerably more limited recognition, largely confined to parts of Florida.”

AAO decision text

How the evidence was treated

  • recommendation letter · discounted
    “The record attests to the Petitioner's training and experience, but the proposed endeavor as described involves more than playing cello.”
    AAO decision text
  • resume experience · discounted
    “The Petitioner did not establish what progress, if any, he had made toward establishing the quartet he initially described.”
    AAO decision text
  • certification membership · discounted
    “The Petitioner did not establish that his employer requires that its musicians hold bachelor's degrees.”
    AAO decision text
  • awards · discounted
    “The Petitioner has not shown that these awards are available to established musicians who have completed their training.”
    AAO decision text
  • other · discounted
    “That document, by design, concerns the overall, collective importance of the arts.”
    AAO decision text

Where this case turned

  • Education alone insufficient · p2 — degrees offered as positioning — credentials are not a track record
  • Endeavor too vague · p2 — described as a job role, not a defined undertaking
  • No progress evidence · p2 — no documented movement toward the endeavor since filing
  • Record of success insufficient · p2 — a claimed track record the documents do not establish
  • Occupational shortage argument rejected · p3 — argues a labor shortage — the labor-certification question, not Dhanasar
  • U.S. worker availability · p3 — the impracticality of a labour-market test was asserted, not established
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Notable

Petitioner made a material change to the proposed endeavor mid-adjudication (claiming a new 'hybrid improvisation model' post-RFE), which AAO treated as impermissible under Matter of Izummi. Petitioner also made contradictory arguments for prong 3, simultaneously claiming both Schedule A shortage occupation status and skills exceeding U.S. workers; AAO rejected the Schedule A argument as based on a misreading of regulations and as a different, mutually exclusive immigration benefit.

Authorities this decision leans on

From the doctrinal survivor set — 187 authority tests across 47 distinct authorities cleared the differential-lift gates. Only those appear here.

  • 8 C.F.R. 103.2(b)(1)
  • 8 C.F.R. 103.3
  • 8 C.F.R. 204.5(k)(2)
  • 8 C.F.R. 204.5(k)(3)(ii)
  • Chen v. INS
  • Matter of Izummi
  • Matter of L-A-C-

What this case teaches

Analyst reading of the decision text.

Decisive factor

Petitioner materially changed his proposed endeavor post-RFE and failed to show he was well-positioned (faculty credentials, quartet progress) or that a waiver benefits the U.S.

Transferable lesson

Define the endeavor concretely at filing, avoid material post-RFE shifts, and support well-positioned and national-benefit prongs with endeavor-specific, not merely personal, evidence.

Endeavor framing

vague

National-importance theory

field_advancement · other

Evidence targeting

person_focused

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