dismissed EB-2 NIW Case: Digital Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 8, 2023 In Re: 23069327 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur digital marketer, seeks second preference immigrant classification as 
a member of the professions holding an advanced degree or as an individual of exceptional ability, as 
well as a national interest waiver of the job offer requirement attached to this EB-2 classification . 
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 the Petitioner had not 
established eligibility for the underlying immigrant classification and for a waiver of the required job 
offer, and thus of the labor certification, would be in the national interest. The matter is now before 
us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, petitioners must 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. In addition, 
petitioners must show the merit of a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1, grant 
a national interest waiver if: 
• 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. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
II. ANALYSIS 
As it relates to the national interest waiver, the first prong relates to substantial merit and national 
importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. At initial filing, the 
Petitioner provided a "Professional Plan & Statement" reflecting: 
I intend to continue using my expertise and knowledge in the areas of entrepreneurship, 
business management, business development, marketing management, digital 
marketing, innovation, strategic partnerships, music production, investments, content 
creation, sales, strategic planning and management, and leadership, by working as an 
Entrepreneur in the U.S. 
. . . I would love to work with American companies looking to target Latin America, 
as many of these companies have entire departments that oversee marketing campaigns 
in these regions of the world. 
My career plan in the United States is to continue working as an Entrepreneur, 
developing new enterprises for the North American market and generating more direct 
and indirect jobs through my endeavors. I intend to continue expanding, maintaining 
good working relationships with investors, and identifying any opportunities for cross­
border investments. I have plans for future business expansion and I will continue to 
facilitate cross-border projects and investments between the U.S. and Brazil. I have 
the experience and skills to navigate lucrative business projects and my unique 
expertise will surely provide guidance and success in the areas of cross-border 
transactions and investments in Brazil. 
If my waiver is granted, I will contribute directly to the Entrepreneurial field. 
Therefore, in realty, I am not competing against other U.S. entrepreneurs and business 
administers since my experience lies in the aforementioned areas. I would be of great 
assistance in providing the much-needed demand for expert Entrepreneurs, I would also 
be able to help in another sector that requires my skills more. 
This is of national importance to the U.S. because there is a severe shortage of 
professionals in my field. I can apply my knowledge to U.S. companies that depend 
on these strategies to grow and build their products and companies. By employing my 
knowledge of entrepreneurship, business management, business development, 
marketing management, digital marketing, innovation, strategic partnerships, music 
production, investments, content creation, sales, strategic planning and management, 
and leadership, I will most assuredly continue to advance as an Entrepreneur in the U.S. 
2 
In response to the Director's request for evidence (RFE), the Petitioner's cover letter stated that "[ s ]ince 
the filing of the case, the Petitioner has developed his endeavor, which has culminated in the creation of 
a business plan for a US company.I I(d/b/a State of Art Education)" and submitted a 
business plan, dated after the issuance of the Director's RFE. 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit but not 
its national importance. On appeal, the Petitioner maintains: 
... [He] proposes to work in sectors of great importance and fast growth for the United 
States. In addition to generating revenues within the country and creating employment 
opportunities, as an entrepreneur, the Petitioner's company will also contribute to 
industry revenue growth. The Petitioner, through his company in the U.S., will play a 
critical role in preparing digital marketing professionals including social media 
marketing strategist, SEO (Search Engine Optimization) experts, ad specialist, content 
marketing professionals and internet technicians for their future career, in order to meet 
the increasing talent demand in this industry. His knowledge of the latest industry 
trends, technologies, and methodologies is currently in high demand and as such, would 
provide crucial to the success of many business seeking professionals with the 
Petitioner's exceptional background and well-rounded skills .... 
At the outset, the Petitioner initially claimed to work as an entrepreneur "to work with American 
companies looking to target Latin America" without any mention of owning and operating I II I In fact, the Petitioner developed the business plan after the Director issued the RFE. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied 
from the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Further, a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. Accordinglf' we will not consider the Petitioner's 
materially changed proposed endeavor of opening and operating I 
In determining national importance, the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although he stresses 
the importance of entrepreneurism, including the submission of industry articles relating to marketing 
and the economy, the Petitioner must demonstrate the national importance of his specific, proposed 
endeavor of providing his particular services rather than the importance of entrepreneurs and 
marketing. In Dhanasar, we noted that "we look for broader implications" of the proposed endeavor 
and that "[ a ]n undertaking may have 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 note here the Petitioner's claim of a professional shortage does not render 
his proposed endeavor nationally important under the Dhanasar framework. In fact, such shortages 
of qualified workers are directly addressed by the U.S. Department of Labor through the labor 
certification process. 
3 
In addition, the Petitioner emphasizes his experience, skills, and abilities. The Petitioner's personal 
knowledge and other attributes relate to the second prong of the Dhanasar framework, which "shifts 
the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether 
the specific endeavor that he proposes to undertake has national importance under Dhanasar's first 
prong. 
Moreover, to evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement, we look to evidence documenting the "potential prospective impact" of his work. The 
Petitioner did not offer specific information and evidence to corroborate his assertions that the 
prospective impact of working as an entrepreneur for American companies rises to the level of national 
importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise to the 
level of having national importance because they would not impact his field more broadly. Id. at 893. 
Here, the record does not show through supporting documentation how his specific entrepreneurial 
services stand to sufficiently extend beyond his prospective clients or companies that may utilize his 
services, to impact the industry or the U.S. economy more broadly at a level commensurate with 
national importance. 
Finally, the Petitioner did not demonstrate how his initial proposed endeavor has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for our nation. 
Without evidence regarding any projected U.S. economic impact or job creation attributable to his 
future work, the record does not show any benefits to the U.S. regional or national economy resulting 
from his entrepreneur position would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. We also reserve 
a determination on the Petitioner's eligibility for the underlying immigrant classification, as either a 
member of the professions holding an advanced degree or as an individual of exceptional ability.2 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
2 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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