dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 10, 2023 In Re: 27503500 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a marketing director, seeks employment-based second preference (EB-2) immigrant 
classification as an individual 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 merits, as a matter of discretion, a national interest waiver of the EB-2 
classification's job offer requirement. 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we agree with the Director that the Petitioner did not demonstrate the required "national importance" 
of her proposed work. Accordingly, 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. An 
advanced degree is defined, in relevant part, as any United States academic or professional degree or 
a foreign equivalent degree above that of a bachelor's degree. See 8 C.F.R. § 204.5(k)(2). 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they 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 "nationa l interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 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. 2 
II. ANALYSIS 
A. EB-2 Immigrant Classification 
As stated above, a petitioner must establish eligibility for the EB-2 classification in order to be eligible 
for a national interest waiver. Here, the Director's decision does not include a determination regarding 
the Petitioner's eligibility as an individual of exceptional ability.3 Because we agree with the 
Director's conclusion regarding the Petitioner's eligibility for a national interest waiver, as will be 
explained below, we reserve the issue of her eligibility for the underlying EB-2 immigrant 
classification. 4 
B. National Interest Waiver 
1. Proposed Endeavor 
In a cover letter accompanying the petition, counsel for the Petitioner indicated that she intends to 
continue to work as the marketing director of her marketing company ,I Ilocated in 
I IFlorida. Specifically, she will use her experience in graphic design and marketing to help small 
and medium-sized enterprises in the United States "improve operations and achieve better productivity 
and profitability levels, therefore generating revenues within the country and creating employment 
opportunities." 
In the Form ETA 750B, Statement of Qualifications of Alien, the Petitioner indicated that she obtained a 
bachelor's degree in graphic design in 1990 from the and a master's 
degree in marketing in 1995 fromL------------------1----------,.J 
Spain. She provided that since 2006 she has worked as a marketing director at 
a marketing agency in I IVenezuela. ---------
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). 
2 See Dhanasar, 26 I&N Dec. at 888-91 , for elaboration on these three prongs. 
3 As the Petitioner emphasizes on appeal, the Director instead determined that the record did not establish the Petitioner's 
eligibility for the underlying EB-2 visa classification as an advanced degree professional , even though the Petitioner did 
not claim eligibility as an advanced degree professional either at initial filing or in response to the Director 's request for 
evidence (RFE). 
4 See INS v. Bagamasbad , 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
2 
In the RFE, the Director observed that the Petitioner did not provide specific insight as to what she intends 
to do in the United States, and requested a detailed description of the proposed endeavor so that the 
Director could evaluate her request for a national interest waiver under the Dhanasar framework. 
Within her RFE response, the Petitioner submitted a business plan, 5 in which she indicates: 
._______ _.lcurrently operates as a media monitoring and media intelligence service 
provider. The company's wide-ranging service portfolio includes services such as brand 
reputation measurement and management, monitoring of key and business-sensitive 
topics, communication crisis management, product launch planning and tracking, 
competitive comparison with competitors, evaluation of the effectiveness of campaigns, 
and communications. 
She states that she and her husband established the company in 2010 to provide media monitoring and 
intelligence services. She provides that the company has "strong business relationships with suppliers 
and partners" such as the media monitoring platforms Rebold Spain and Brandwatch and the data 
integration platforms Vendasta and Datadoo. Its "current prospects" include Newlink Group, Arnerant 
Bank, Banesco USA, Baptist Health South Florida, and LUMU Technologies. 
2. Substantial Merit and National Importance 
To satisfy the first prong under the Dhanasar analytical framework, the Petitioner must demonstrate 
that their proposed endeavor has both substantial merit and national importance. The first prong 
focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
The Director concluded that the evidence did not demonstrate that the endeavor would have national 
importance, emphasizing that the Petitioner had not shown how her proposed endeavor would have 
broader implications within her field that would reach beyond clients utilizing her organization's 
services, or that it would broadly enhance societal welfare at a level commensurate with national 
importance, consistent with Dhanasar. The Director further observed that the record did not 
demonstrate that the proposed endeavor has significant potential to employ U.S. workers, would 
impact an economically depressed area, or would have benefits to the regional or national economy 
that would reach the level of "substantial economic effects" contemplated by Dhanasar. Id. at 890. 
On appeal, the Petitioner maintains that the Director did not give due regard to her recommendation 
letters; expert letter; articles demonstrating the national importance of her proposed endeavor; 
evidence of her professional experience and accomplishments; and the staffing and income projections 
in her company's business plan. For the reasons provided below, we agree with the Director's 
determination that the Petitioner has not sufficiently demonstrated the national importance of her 
proposed endeavor under the first prong of the Dhanasar analytical framework. 
5 While we do not discuss each piece of evidence individually, we have reviewed and considered each one. 
3 
The Petitioner's initial evidence included articles from sources including Ama.org, Deluxe.com, 
Y ourarticlelibrary.com, and Inkbot.com that address the importance of marketing for small and 
midsize businesses; the significance of marketing to society and the economic development of a 
country; and the importance of graphic design in marketing. This evidence supports the Petitioner's 
claim that her proposed endeavor is in an area that has substantial merit, as she proposes to work in 
tandem with small and midsize companies to improve operations and achieve better productivity and 
profitability levels, thereby generating U.S. revenues and employment opportunities. 
However, in determining national importance, the relevant inquiry is not the importance of the industry 
or profession in which the individual will work; instead, we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar, 26 I&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 national importance, for example, because it has national or even global 
implications within a particular field." Id. 
Based on the business plan contained in the Petitioner's RFE response, she has not shown how the 
media monitoring and media intelligence services she intends to provide to her clients would have 
broader implications in the marketing field. She broadly states that her media monitoring business 
will "prove invaluable" to the small and midsize business sector, "and, by extension, the well-being 
of the nation as a whole," but the record does not provide adequate support for a determination that 
her specific proposed endeavor will have such a wide-reaching impact. 
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. The business 
plan indicates the Petitioner's company offers monthly subscription services, such as "Media 
Monitoring, Social-listening, Reputation Management Pro, Advertising Intelligence, Customer Voice, 
and Social Marketing." But this evidence does not sufficiently show that such benefits, either 
individually or cumulatively, would reach beyond clients utilizing her company's services to the level 
of national importance. Nor has she demonstrated that her work would broadly enhance societal 
welfare at a level commensurate with national importance. 
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. The business plan includes industry 
and market analyses, business strategies, financial forecasts and projections, and a description of the 
company's proposed service offerings and personnel. With respect to future staffing and financial 
forecasts, the business plan projects that the Petitioner's marketing business would hire seven 
employees in the first five years of operations; will achieve total revenues of$ 711,120 in its first year 
and $1,574,623 by its fifth year; and will realize a net profit of $38,618 in its first year and $135,853 
by its fifth year. The business plan also states that "the Company will lead to the creation of [an] 
additional 51 indirect jobs according to the multipliers provided by the [Economic Policy Institute.]" 
The job creation and revenue projections included in the Petitioner's business plan are not supported 
by details showing their basis or an explanation of how those projections will be realized. Even if the 
Petitioner had established a sufficient basis for those projections, they would not establish the national 
4 
importance of the proposed endeavor. While the projected income statement indicates that the 
Petitioner ' s media monitoring business has growth potential , it does not demonstrate that the benefits 
to the regional or national economy resulting from her undertaking would reach the level of 
"substantial positive economic effects" contemplated by Dhana sar. Id. at 890. 
In addition, the Petitioner has not offered sufficient evidence that the areas where her company will 
operate are economically depressed; that her company would employ a significant population of 
workers in those areas; or that her endeavor would offer the region or its population a substantial 
economic benefit through employment levels, business activity, or tax revenue. Without this evidence, 
we cannot evaluate the proposed endeavor's impact on job creation or its overall economic impact. 
As such, the Petitioner has not supported a claim that her proposed endeavor stands to sufficiently 
extend beyond her customers to impact the marketing field at a level commensurate with national 
importance. 
Moreover , in her personal statements and appellate brief, the Petitioner has placed considerable 
emphasis on her academic training in graphic design and marketing and her professional ex]erience 
in those fields. The record also contains recommendation letters froml and its 
clientele. While important, the Petitioner's expertise acquired through her academic and professional 
career primarily relates to the second prong of the Dhana sar framework , which "shifts the focus from 
the proposed endeavor to the foreign national." Id. The issue here is whether the specific endeavor 
the Petitioner proposes to undertake has national importance under Dhanasar 's first prong. While 
these letters demonstrate the Petitioner's past work experience and contributions to her employer, they 
do not support that her proposed endeavor to work as a director of marketing through her company 
has "a significant potential to employ U.S. workers" or "substantial positive effects," as claimed. 
Finally, we acknowledge that the Petitioner provided an expert opinion letter from an associate 
professor froml !University. He provides that the Petitioner's company will "offer its services 
to small and medium-sized businesses and assist them to enter the market smoothly and grow their 
presence through online marketing strategies and market monitoring." He states that the Petitioner's 
services "[s]haring relevant and up-to-date information with her clients will allow them to well­
position their company and create strategies that will be most beneficial to their brand." He relates 
the above figures pertaining to staffing and financial forecasts contained in the Petitioner ' s the 
business plan, which he characterizes as "[ s ]ho wing a very steady and growing business." 
The input of any professionals in the relevant field or industry is respected and valuable in assessing 
a claim of a national interest waiver. However, the expert opinion letter does not sufficiently 
demonstrate that the Petitioner's proposed endeavor has significant potential to employ U.S. workers 
or otherwise offers "substantial positive economic effects" for our nation contemplated by Dhanasar . 
Id. at 890. For example, the professor has not provided any analysis or numerical breakdowns to 
substantiate how the Petitioner ' s marketing services would benefit the nation's labor market, 
economy, and business industry. He has not offered sufficient evidence that the Petitioner 's marketing 
services through her company would enable her clients to employ a significant population of workers 
in an economically depressed area, or that her endeavor would offer a particular U.S. region or its 
population a substantial economic benefit through employment levels or business activity. Nor has 
the professor demonstrated that any increase in the clients' revenue attributable to the Petitioner's 
marketing services stands to substantially affect economic activity regionally or nationally. 
5 
Further, although the professor notes that there is a "remarkable and growing digital marketing demand 
across industries and sectors" which the Petitioner's company will address, he has not suggested that 
the Petitioner's proposed endeavor would lessen the demand for digital marketers on a scale rising to 
the level of national importance. 
On appeal, the Petitioner submits two of our non-precedent decisions in which each petitioner had 
submitted a Form I-140 seeking classification as an individual of extraordinary ability and we 
sustained the appeal. First, as noted, these two petitioners sought employment-based first preference 
(EB-1) immigrant classification, which is different from the EB-2 immigrant classification sought by 
the Petitioner in the instant case. Second, neither decision was published as a precedent and, therefore, 
these decisions do not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non­
precedent decisions apply existing law and policy to the specific facts of the individual case and may 
be distinguishable based on the evidence in the record of proceedings, the issues considered, and 
applicable law and policy. 
For the reasons discussed, the evidence does not establish the national importance of the proposed 
endeavor as required by the first prong of the Dhanasar precedent decision. Because the Petitioner 
has not established her proposed endeavor has national importance, she is not eligible for a national 
interest waiver under the Dhanasar analytical framework. 
On appeal, the Petitioner maintains that she meets the third prong of the Dhansar framework. She 
also argues that the Director disregarded the regulation contained in 20 C.F.R. § 656.3, making it 
legally impossible for an entrepreneur to file a labor certification on his or her own behalf We 
acknowledge the Petitioner's claims, but since the identified basis for this decision is dispositive of 
the Petitioner's appeal, we will reserve these issues for future consideration should the need arise, and 
will dismiss the appeal as a matter of discretion. 6 
III. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that she has not established eligibility for 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 
alternative basis for denial. 
ORDER: The appeal is dismissed. 
6 See Bagamasbad, 429 U.S. at 25-26; see also L-A-C-, 26 l&N Dec. at 516, n.7. 
6