dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 1, 2024 In Re: 29846638 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner is a marketing manager who seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree, as well as a 
national interest waiver (NIW) of the job offer requirement attached to this classification. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition). While the Director determined the Petitioner qualifies for the underlying visa classification 
as a member of the professions holding an advanced degree, they decided adversely on her claims that 
she merits a discretionary waiver of the job offer requirement in the national interest. 
The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and Immigration 
Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 
25 I&N Dec. 369, 375 (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 will dismiss the 
appeal. 
I. LAW 
To establish eligibility for an NIW, 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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 "national interest," Matter of 
Dhanasar , 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating NIW 
petitions. Dhanasar states that USCIS may, as matter of discretion, grant an NIW 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. 
The purely discretionary determination of whether to grant or deny an NIW rests solely with USCIS. 
See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) ( citations omitted). 
II. ANALYSIS 
When she filed the petition, the Petitioner characterized the proposed employment as a marketing 
manager who would plan, direct, or coordinate marketing policies and programs, such as determining 
the demand for products. She further indicated she had amassed seven years of experience as a 
marketing manager in her home country. The Petitioner proposed to create her own limited liability 
company that would provide marketing, communications, and digital marketing services and she 
would offer marketing training for professionals who want to specialize in the field. 
Her business plan indicated she would initially focus on e-commerce, small businesses, and event 
promotion companies in all regions of her home state. Based on the growth potential in marketing in 
her area and a projected shortage of workers and her willingness to hire personnel, she claims her 
endeavor could positively benefit the U.S. economy by impacting the primary industries closest to her 
business and to economically depressed areas, as well as other positive impacts to society. 
A. Substantial Merit and National Importance 
We do not necessarily agree with the Director's favorable determination 
regarding the first prong. The 
first prong, substantial merit and national importance, 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, entrepreneurialism, 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 the Petitioner's endeavor met the prong one 
requirements. Based on the below analysis, we withdraw the Director's overall favorable rnling on 
prong one. 
Here, our focus is on the national importance element of prong one. In the request for evidence (RFE) 
response, the Petitioner listed several areas in support of her claims that her endeavor was of national 
importance to include: the general economic growth of the United States; international 
competitiveness through developing strategies to compete in the global marketplace; regional 
development by highlighting the local area's unique attractions and hospitality opportunities; job 
creation through expanding her business; and innovation and leadership emanating from her office's 
creativity. It is within some of these expansive concepts that the Petitioner places too much focus on 
the occupation of marketing managers and too little on what she will actually be doing in the proposed 
endeavor. For instance, the Petitioner has not adequately tied general economic growth and 
international competitiveness to her endeavor as opposed to those concepts benefitting from successful 
businesses in general. 
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Turning to direct job creation, this is an aspect more directly associated with Petitioner's endeavor. 
Within the business plan in the record, the Petitioner projects to employ eight personnel with a total 
employee compensation of over $2.3 million by the end of year five. She also references the indirect 
and induced jobs opportunities that will result from the services her prospective company performs. 
In addition to compensation, the Petitioner's business plan predicts $3.5 million in revenue, 
approximately $390 thousand it's employees will pay in taxes on their wages, and nearly $600 
thousand in operating costs over the five-year period. Although the business plan offers insight into 
the U.S. consulting market and prospects for the general and operations manager profession, the 
Petitioner has not sufficiently explained how the business will realize those projections. Lacking from 
the record is evidence that corroborates the salient portions of the business plan and how the forecasted 
data will come to fruition. 
Regarding economic benefits in a depressed area, the Dhanasar decision explains 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." Dhanasar, 26 I&N Dec at 890. First, simply having the potential to employ U.S. 
workers does not rise to the requisite standard in Dhanasar that mandates that potential be significant. 
Id. Second, even though these effects are not required to be national in scale, they must demonstrate 
a potential prospective impact that is "substantial" to a particular area, region, or industry to have 
national importance. Id. 
Here, through the business plan and the remaining evidence, the Petitioner has not demonstrated the 
"significant potential to employ U.S. workers ... in an economically depressed area .... " that is 
required. Id. Even if we presume the business plan projections are realized, also missing is the 
Petitioner's explanation of the manner in which these forecasted figures will offer substantial 
economic benefits to the area or to her industry. The Petitioner must provide sufficient evidence to 
support her claims that these estimates rise to the level of national importance and have a broad impact 
in her field. Id. at 893. 
The Petitioner attributes her likely success, in part, to her 12 years of experience in marketing 
management and several external factors to include competitive pricing, creating and increasing a 
customer base, relying on other local companies to increase her company's visibility, customer service 
skills, highly qualified staffing, social media advertising for her own agency, and search engine 
optimization to improve her company's visibility in online searches. However, the Petitioner's focus 
on her own experience is not an aspect under direct consideration for prong one and is more aligned 
with the requirements of the second prong where she must demonstrate she is well positioned to 
advance the proposed endeavor. And we determined in Dhanasar that the foreign national' s teaching 
activities did not rise to the level of having national importance because they would not impact the 
field of science, technology, engineering, and math education more broadly. Id. The record does not 
demonstrate that the Petitioner's proposed endeavor will substantially benefit the field of marketing, 
as contemplated by Dhanasar: "[a ]n undertaking may have national importance for example, because 
it has national or even global implications within a particular field, such as those resulting from certain 
improved manufacturing processes or medical advances." Id. The evidence does not suggest that the 
Petitioner's consulting services business would impact the marketing field more broadly. 
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We acknowledge the role the marketing industry, as a whole, plays in the U.S. economy and any 
attendant benefits to the economy from entrepreneurial immigrants. But simply working in the 
marketing field or starting a small business in that industry falls short of demonstrating the level of 
national importance required by this visa classification. And we focus less on an industry itself or on 
a shortage of U.S. workers in any particular field, but instead on "the specific endeavor that the foreign 
national proposes to undertake." Id. at 889. 
The documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of Dhanasar, and we withdraw the 
Director's favorable determination under prong one. Because the Petitioner was not placed on notice 
of these issues for the appeal, we will evaluate the prong two requirements included in the Director's 
denial. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their education, skills, knowledge and record of success in related or similar efforts; a 
model or plan for future activities; any progress towards achieving the proposed endeavor; and the 
interest of potential customers, users, investors, or other relevant entities or individuals. Id. at 890. 
Although the record reflects the Petitioner possesses sufficient education, skills, and knowledge of the 
marketing industry in Brazil, it does not establish that she has a similar record of success in that same 
field in the United States. Additionally, the Petitioner does not adequately argue how her previous 
marketing experience has properly prepared her to begin and operate a business in the United 
States. We note the day-to-day necessities of running a business requires knowledge and skills distinct 
from the Petitioner's background in marketing. And while her business plan might offer some insight 
into certain considerations for business operations, it is not so detailed that it should serve as an 
adequate replacement for actual business experience. 
As we noted in Dhanasar, while the "influence on the field as a whole" standard in Matter of New 
York State Dep 't ofTransp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998) (NYSDOT), might have 
seemed to be a reasonable notion in that that past success could predict future benefit, practical 
experience following NYSDOT's publication "revealed that there are some talented individuals for 
whom past achievements are not necessarily the best or only predictor of future success." Dhanasar, 
26 I&N Dec. at 889 n.6. Of particular importance is the requirement that when claiming or evaluating 
past achievements as a predictive gauge, such a record of success must be "in related or similar 
efforts." Id. at 890. We highlight the Petitioner's experience is in marketing and not in operating a 
marketing management office or even a business, and she has not offered adequate arguments that 
they are sufficiently similar. Here, the Petitioner's experience in marketing may not be a reliable 
predictor that she is well positioned to advance the proposed endeavor. 
The Petitioner provided her business plan projecting a monthly financial cost of over $80,000 factoring 
in wages, monthly fixed costs, and the cost of office assets or equipment. The Petitioner indicated she 
needs funds to run the business for three months before it must generate revenue, or it could possibly 
go out of business. The business plan reflected she would use her own money to launch the company 
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without depending on funding from third parties. However, the Petitioner did not provide 
documentation to corroborate her claims that she possesses sufficient funds to meet this three-month 
commitment. 
Although the Director did not directly discuss any recommendation letters the Petitioner presented, 
they did conclude that her work did not appear to constitute a record of success or progress in her field, 
nor had she garnered a degree of interest in her work from relevant parties to show she was well 
positioned to advance her proposed endeavor. On appeal, the Petitioner discusses the letters to support 
her opinion that she is well positioned to advance her endeavor. 
A review of the letters does not sufficiently corroborate the Petitioner's opinion. The letters discuss 
the Petitioner's work in marketing and advertising in Brazil, but not how those activities are similar to 
her proposed endeavor. While the authors each praised her work, none of them indicated that her work 
involved dealing with U.S. companies or for advertising campaigns within the United States, which is 
part of her stated endeavor, and where she seeks to pursue it. Ultimately, none of the letters discuss 
achievements, recognition, or significant contributions to the field that would persuade us that she is 
well positioned to advance her endeavor in the United States. 
Relating to progress the Petitioner has made towards achieving the proposed endeavor, she offered the 
business plan and within the appeal she indicates she is taking a course in her field of study and 
improving her proficiency in English. Regarding the business plan, that document might be helpful 
in laying out some of the considerations for standing up and operating a new business, but it does not 
adequately aid the Petitioner in demonstrating she is well positioned to advance the proposed 
endeavor. 
Finally, the Petitioner claims interest exists for her endeavor's services based on one letter from a 
Brazilian company who expanded their work into the United States in 2021. First, the letter is dated 
five months after she filed the petition and two months after the Director issued the RFE placing her 
on notice that the record was deficient of this type of evidence. We note the letter does not reflect that 
the company expressed any interest in the Petitioner's future marketing organization performing work 
for them prior to the petition filing date. A request for an immigration benefit "must establish that he 
or she is eligible for the requested benefit at the time of filing the benefit request and must continue to 
be through adjudication." 8 C.F.R. § 103.2(b)(l). Any additional evidence submitted in connection 
with a benefit request at a later date, including evidence responding to a request from USCIS, must 
also establish "eligibility at the time the benefit request was filed." 8 C.F.R. § 103.2(b)(12); Robinson 
v. Napolitano, 554 F.3d 358, 364 (3d Cir. 2009). 
Even ifwe were to consider how this commitment letter impacts the Petitioner's petition, it would not 
convince us that she has met the second prong. While a single letter is a positive element towards 
demonstrating interest of potential customers, this letter is not sufficiently detailed to persuade us in 
that direction. The letter is not accompanied by other probative evidence demonstrating the size of 
this company or the extent of marketing or advertising it wishes the Petitioner's future organization to 
perform for it. As we noted above, the commitment letter does not demonstrate she is well positioned 
to advance her proposed endeavor. 
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The record lacks other material that could reflect favorably upon the Petitioner's claims. There is no 
evidence of actual ownership of a U.S-based entity, licenses to operate in the specified location, 
financing from outside investors, awards or grants, copies of contracts or other agreements, etc. For 
the above collective reasons, the Petitioner has not established that she satisfies the second prong of 
the Dhanasar framework. 
C. Whether on Balance a Waiver is Beneficial 
As explained above, the third prong requires the petitioner to demonstrate that, on balance, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. Here, however, the Petitioner has not established that she is well positioned to advance 
her proposed endeavor as required by the second prong of the Dhanasar framework. As such, the 
Petitioner is not eligible for an NTW and further discussion of the balancing factors under the third 
prong would serve no meaningful purpose. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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