dismissed EB-2 NIW Case: Commercial Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 26, 2024 In Re: 28536795 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, acommercial manager, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner was anoncitizen holding an advanced degree or that she was of exceptional 
ability in accordance with Section 203(b)(2)(A) of the Act. Further, the Director concluded that the 
Petitioner had not established that a waiver of the classification's job offer requirement, and thus of 
the labor certification, would be in the national interest. 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa 's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(B)(i) of the Act. Exceptional 
ability means adegree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at 
least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification.1 If a petitioner 
does so, we will then conduct a final merits determination to decide whether the evidence in its totality 
shows that they are recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
Next, a petitioner must then establish that they merit a discretionary waiver of the job offer requirement 
"in the national interest." Section 203(b)(2)(B)(i) of the Act. While neither the statute nor the 
pertinent regulations define the term "national interest," Matter of Dhanasar, 26 l&N Dec. at 889, 
provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCIS) may, as matter of discretion,2 grant a national interest 
waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
11. ANALYSIS 
The Director concluded that the Petitioner had not demonstrated that she was a member of the 
professions holding an advanced degree.3 Concerning qualification for EB-2 classification as a 
noncitizen of exceptional ability, the Director concluded that the Petitioner had provided sufficient 
evidence to advance to a final merits determination but did not demonstrate in the final merits analysis 
that she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, 
or business. Further, the Director concluded that the Petitioner did not qualify for a national interest 
waiver under the Dhanasar framework as she had not demonstrated that her proposed endeavor was 
of national importance, that she is well positioned to advance her endeavor, or that on balance it would 
be beneficial to the United States to waive the requirements of a job offer, and this of a labor 
certification. 
The Petitioner states, in her professional plan, that she has 16 years of experience in "administrative, 
commercial, and graphic design areas for national and international markets." Prior to initial filing, 
she was employed as a commercial manager with a business coaching company for approximately 
four years. The Petitioner states that she intends to "continue [her] activities as a Commercial 
Manager" and that she also intends "on teaching, training, and capacitating others in the field." 
With the initial filing, the Petitioner submitted her attorney's cover letter, evidence of her education 
and experience, employment letters, recommendation letters, and awards. 
Following initial review, the Director issued a Request for Evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence to attempt to establish her eligibility for EB-2 classification 
and a national interest waiver.4 The Petitioner's response to the RFE includes her attorney's cover 
2 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
3 On appeal, the Petitioner does not contest the Director's determination that she is not an advanced degree professional. 
An issue not raised on appeal is waived. See, e.g., Matter of O-R-E-, 28 l&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter 
of R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012)). 
4 In the RFE, the Director concluded that the Petitioner had met at least three criteria for EB-2 classification as anoncitizen 
of exceptional ability but that the totality of the evidence did not demonstrate that she possessed a degree of expertise 
2 
letter, additional evidence of her education and experience, job offers, support letters, and a "new 
Professional Plan." 
In her new professional plan submitted in response to the RFE, the Petitioner states that her proposed 
endeavor will be to "act as a Commercial Manager in two main areas." The Petitioner relates that 
those areas are: 
PROPOSAL 1: MARKET EXPANSION - I will work with strategic planning in the 
creation of customized commercial processes according to each type of business, 
implementing specific plans to increase sales and increase the companies' market 
share. As concrete measures to achieve the desired results through my commercial 
management. .. 
PROPOSAL 2: DIGITAL MARKETING - Through digital marketing management, 
always focused on the growth of profitability and market expansion, I will identify, 
anticipate and satisfy customer needs, providing mechanisms and methods that 
stimulate this consumer's desire to seek your product/service. This is a fundamental 
area within commercial management in the search for sales success and economic 
growth for companies of all types. 
The Petitioner further clarifies that her proposed endeavor will comprise her "implement[ing] [her] 
innovative commercial strategies to U.S. companies, to promote market expansion adopting effective 
digital marketing strategies." 
After review of the Petitioner's RFE response, the Director concluded that the Petitioner had 
established the substantial merit of her proposed endeavor. We agree. However, the Director 
concluded that the Petitioner had not established her eligibility for the underlying EB-2 classification, 
that she had met the remainder of the first prong, national importance, or that she met the second or 
third prong of the Dhanasar analytical framework. 
Regarding national importance, the Director concluded that the evidence submitted did not support 
the Petitioner's assertion that her endeavor will have a potential prospective impact. The Director 
hinges the denial on the Petitioner not providing sufficient evidence that her proposed endeavor will 
impact the field more broadly. Further, the Director points out that the Petitioner failed to elaborate 
on how, at a level that is nationally important, the Petitioner will generate jobs and tax revenue, 
strengthen U.S. companies, and contribute to the U.S. economy. Finally, the Director summarizes that 
the Petitioner had not demonstrated that her endeavor will have broader implications with the field, 
has a significant potential to employ U.S. workers, will have substantial positive economic effects, 
will broadly enhance societal welfare, or will broadly enhance cultural or artistic enrichment. We 
agree. 
significantly above that ordinarily encountered in the sciences, arts, or business. See 8 C.F.R. § 204.5(k)(3)(ii). Because 
we resolve this appeal on other grounds, we reserve our decision on whether the record demonstrates the Petitioner meets 
the exceptional ability standard. 
3 
On appeal, the Petitioner argues that the Director's decision "contains numerous erroneous 
conclusions of both law and fact." Next, the Petitioner argues that her past work in the field of 
commercial management "signifies that her proposed endeavor has palpable broader implications" 
and a "significant prospective impact." Further, the Petitioner asserts that there is "profuse 
documentation evidencing the national importance of her proposed endeavor." We disagree. 
Regarding the Petitioner's argument that the Director's decision "contains numerous erroneous 
conclusions of both law and fact," the Petitioner asserts that she submitted sufficient evidence to meet 
the regulatory and category standards. Therefore, she asserts that the Director arrived at erroneous 
conclusions of law. Although the evidentiary standard in immigration proceedings is preponderance 
of the evidence, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of persuasion. 
Matter of Y-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof 
from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden 
of production and the burden of persuasion). A petitioner must satisfy the burden of production. This 
burden requires that a petitioner to produce evidence in the form of documents, testimony, etc. that 
adheres to the governing statutory, regulatory, and policy provisions sufficient to have the issue 
decided on the merits. The Petitioner submitted the evidence noted above. However, as explained 
below, the evidence in the record and assertions are insufficient to carry her burden of production and 
persuasion because they do not sufficiently relate to her proposed endeavor's national importance 
under the first prong of the Dhanasar framework. 5 
In determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Matter of Dhanasar, 26 l&N Dec. at 
889. In Dhanasar, we further noted that "we look for broader implications" of the proposed endeavor 
and that "[a]n undertaking may have a national importance for example, because it has national or 
even global implications within a particular field." Id. We also stated that "[a]n endeavor that has 
significant potential to employ U.S. workers or has other substantial positive economic effects, 
particularly in an economically depressed area, for instance, may well be understood to have national 
importance." Id at 890. We look to the Petitioner's specific proposed endeavor to determine national 
importance. 
The Petitioner asserts that her endeavor will "broadly impact the Marketing and Sales fields and 
various industries." Further, she asserts that she will "help American businesses foster innovation in 
business and reach financial success." And the Petitioner "will guarantee efficient commercial 
operations and marketing planning, be it in retail or with corporate clients." Even accepting these 
outcomes are possible, the Petitioner has not explained how these outcomes will be realized in 
sufficient detail and she has not demonstrated how these outcomes will have an impact beyond herself 
and the clients she serves. In the same way that the teaching activities proposed by the petitioner in 
Dhanasar were not shown to have a broader impact on the field of STEM education, here the Petitioner 
has not demonstrated that her proposed endeavor would have broader implications in the field of 
5 The Petitioner's argument that her past achievements demonstrate the national importance of her proposed endeavor is 
without merit as past achievements relate to Dhanasar's second prong. 
4 
commerce on the U.S. economy beyond the clients benefiting from the Petitioner's services. Matter 
of Dhanasar, 26 l&N Dec. at 893. 
The Petitioner argues that her prior experience, which has "impacted the business field, with 
widespread benefits that permeate several industries" demonstrates the national importance of her 
proposed endeavor. However, as noted above, the national importance component of Dhanasar's first 
prong is focused is on the proposed endeavor. The Petitioner's experience relates more specifically 
to second prong considerations. Likewise, the Petitioner's arguments that her work has "positively 
affected the Commercial Management industry in a national (if not international) range" and that she 
is "well-known in the industry of the proposed endeavor" does not give more detail to her specific 
proposed endeavor's national importance. 
Similarly, the other evidence submitted does not address the national impmiance of the Petitioner's 
proposed endeavor in a meaningful way. In a reference letter written by D-A-, the author has positive 
things to say about the Petitioner including that she is "one of the best business managers we have 
ever worked with in active projects." 6 Another reference letter provided by M-D- indicates that the 
author met the Petitioner in January 2022 while the Petitioner was "participating in our selective 
process to fill an executive sales position." The letter goes on to state that the Petitioner was "initially 
hired to procure and sell to Latin and Brazilian supermarket and restaurant chains in So. Florida." Yet, 
the letter does not address the Petitioner's proposed endeavor at all. Instead, the letter points out that 
the Petitioner "is an essential part of this organization's efforts to grow and reach our goals in the 
domestic and international markets." The letters do not address how the Petitioner's proposed 
endeavor will have the broader implications envisioned by the first prong of the Dhanasar framework. 
As the Petitioner has not established the national importance of her proposed endeavor as required by 
the first prong of the Dhanasar framework, she is not eligible for a national interest waiver and further 
discussion of the second and third prongs would serve no meaningful purpose. As noted above, we 
reserve the Petitioner's appellate arguments regarding the remaining Dhanasar prongs. See INS v. 
Bagamasbad, 429 U.S. at 25. 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
6 While we discuss a sampling of the evidence in the record, we have reviewed and considered the totality of evidence. 
5