dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 19808402 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 25, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a marketing manager, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree and as an individual of exceptional ability, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 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 Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available . .. to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in 1he 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) Nationalinterestwaiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Furthermore, while neither the statute nor the pe1iinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national is well positioned to advance the proposed endeavor; and (3) 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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 impmiance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
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 ce1iification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offerorforthepetitionerto obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor ce1iification process. In each case, the factor(s) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
2 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 4 Accordingly, the issue to be determined on appeal is whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus a labor certification, would be in 
the national interest. For the reasons discussed below, we agree with the Director that the Petitioner 
has not sufficiently demonstrated eligibility under the first prong of the Dhanasar analytical 
framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 8 89. The Petitioner initially provided a statement indicating: 
I intend to continue using my expertise and knowledge in the field of Marketing and 
Business Administration. I have extensive experience working as a Marketing Manager 
within the Brazilian business environment for the past 3 0 years. 
My career plan in the United States is to continue working with American companies that 
require my specialized knowledge, years of experience, and significant expertise. I intend 
to continue designing marketing strategies, maintaining positive working relationships 
with peers to facilitate company growth, and identifying viable opportunities for business 
development through extensive research. I can provide a company's marketing efforts by 
leveraging the wealth of consumer data from various sources and target messaging 
accordingly. In addition, by restructuring internal teams, adopting new technology, 
expanding market opportunities, focusing on the new customer journey, and allowing for 
a deeper understanding of marketing touchpoints, I will ultimately create a greater 
competitive advantage. 
In response to the Director's request for evidence, the Petitioner submitted a revised statement indicating 
I intend to continue to develop my career in the field of business in the United States, 
promoting the improvement of marketing, sales, branding, business management, and 
consequently stimulate the generation of substantial revenue within the U.S. business 
industry. As such, my proposed endeavor in the United States is to continue working as 
a marketing director/manager fomenting business and commercial activity domestically 
and among international markets. I will use my marketing skills to stimulate commercial 
transactions; to support the improvement of business operations; to promote sales of 
3 SeeDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 As the Director concluded thatthePetitionermeets the classificationasa memberoftheprofessions holding an advanced 
degree, a determination regarding his classification as an individual of exceptional ability is moot. 
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products and services of companies; and to facilitate cross-border transactions involving 
foreign markets. 
My proposed endeavor is to foment commercial activity and the generation of significant 
revenue in the U.S. economy. 
My proposed professional activities will involve the continue management of my 
company I-and the assistance to other U.S. companies that intend to 
expand their business abroad, as to foreign companies that intend to introduce their 
business and operations in the U.S. market. 
The Petitioner then discussed his business intentions relating tol 1,1 I 
and I. In response to the Director's notice ofintentto deny, the Petitionerreferenced theCOVID-
19 pandemic and claimed that he "could create, suggest, and enact immediate change to a company's 
business model to hedge short-term losses and foster long-term profitability in the current business 
environment." On appeal, the Petitioner maintains that his proposed endeavor as a marketing manager 
can potentially "influence the migration of foreign companies and investments into the U.S., [] create 
direct and alternate revenue streams for domestic companies, [ ] help preserve and create jobs for 
Americans, [] expand the reach of small businesses to a national scale, and is [ ] a critical profession for 
the immediate rebound of the U.S. economy in a post-pandemic landscape." The Director determined 
that the Petitioner demonstrated the proposed endeavor's substantial merit but not its national importance. 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently shown 
the national importance aspect of his proposed endeavor. 
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 "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although he provided 
evidence relating to the general marketing manager position and its role in the business sector, the 
Petitioner must demonstrate the national importance of his specific marketing management services 
rather than the national importance of marketing management or the marketing manager position in a 
company or the wide range of fields or industries in which he intends to work. InDhanasar, 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. 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. 
Throughoutthe record, the Petitioner emphasized his ''expertise andknowledge," ''extensive experience," 
and "specialized knowledge, years of experience, and significant expertise." The Petitioner's experience 
and abilities in his field 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. 
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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. On appeal, the 
Petitioner contends that he "submitted substantial evidence regarding his proposed endeavor as a 
marketing manager and detailed the steps he would take to help facilitate the transition of foreign 
businesses into the U.S. market, which would attract opportunities for significant foreign direct 
investment, expand job opportunities for U.S. citizens, and help established domestics expand through 
increased business o 01iunities." S ecificall , the Petitioner references his personal statements and 
letters fro "who expressed their need to retain [ the Petitioner's] 
services," andl I and ______ "who wish to expand the reach of their domestic 
business to a national level." 5 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 89 3. Here, the Petitioner's statements and business letters do not sufficiently show that 
his proposed endeavor of serving as a marketing manager stands to sufficiently extend beyond his 
present or potential employers, to impact the businesses or any other industries or the U.S. economy 
more broadly at a level commensurate with national importance. The Petitioner did not demonstrate 
for instance, how his services with these selective businesses, including his own business of 
I lwould translate into a greater effect on the overall economy. 
Furthermore, the Petitioner has not established that the specific endeavor he proposes to undertake has 
significant potential to employ U.S. workers or otherwise offers substantial positive economic effects 
for our nation. Although the Petitioner claims that his endeavor "will provide significant economic 
benefits to the U.S. by creating foreign and alternate domestic revenue streams, increasing 
employment opportunity for American workers, and protecting American small businesses from 
capitulating during a post-pandemic U.S. economy," the Petitioner's documentary evidence does not 
support his assertions. Neither the Petitioner's statements nor the business letters mention any 
potential job numbers, demonstrate how his proposed endeavor would impact unemployment levels, 
or detail any revenue benefits for national or regional areas. Without sufficient information or evidence 
regarding any projected U.S. economic impact or job creation attributable to his future work, the record 
does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's 
marketing manager position would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed endeavor does not meet 
the first prong of the Dhanasar framework. 
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 inDhanasar, therefore, would serve no meaningful purpose. 6 
5 On appeal, the Petitioner offers anassessmentfroJ I However, we will not consider this evidence 
for the first time on appeal as it was not presented before the Director. SeeMatter of Soriano, 19 I&N Dec. 764,766 (BIA 
1988) (providing that if "the petitioner was put on notice of the required evidence and given a reasonable opportunityto 
provide it for the record before the denial, we will not consider evidence submitted on appeal for any purpose" and that 
"we will adjudicate the appeal based on the record of proceedings" before the Chief); see also Matter of Obaigbena, 19 
T&NDec. 533 (BIA 1988). 
6 See INS v. Bagamasbad, 429 U.S. 24, 25 (197 6) (stating that "courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results theyreach"); see also Matter of L-A-C-, 26l&NDec. 516,526 
n.7(BIA2015) (declining to reach alternative issues on appeal where anapplicantis otherwise ineligible). 
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III. CONCLUSION 
As the Petitioner has not met the requisite first prong oftheDhanasar analytical framework, we conclude 
that he has not demonstrated that he is eligible 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. 
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