dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re : 16069937 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL.15,2021 
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. 
On appeal, the Petitioner offers previously submitted documentation and a brief asserting that she is 
eligible for a national interest waiver. 
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 novo 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 the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [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 pertinent 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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national impmiance, 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 importance, 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 certification. 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 off er or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
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 discretionaiy in nature). 
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national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
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 
A. Member of the Professions Holding an Advanced Degree 
The Director did not make a determination regarding the Petitioner's eligib lity as either a member of the 
professions holding an advanced degree or as an individual of exceptional ability. The record reflects 
that the Petitioner possesses the foreign equivalent of an advanced degree. Accordingly, the Petitioner 
qualifies as a member of the professions holding an advanced degree. See 8 C.F.R. § 204.5(k)(2) and 
(3)(i)(A). 4 
B. National Interest Waiver 
The remaining issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job off er, 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 889. The Petitioner initially provided a statement indicating: 
I intend to continue my career in the field of Marketing, helping companies establish their 
product lines or services, as well as the new products and services they want to introduce 
to the market. 
I plan to use my skills and knowledge in Marketing, gained from my 16 years of 
experience, to work with U.S. companies to help them in their marketing campaigns, in 
addition to advising U.S. companies in cross-border projects in Brazil and Latin America. 
I propose to use my skills and knowledge gained through my professional experience as 
a Marketing expert, and my broad expertise within my field, to work as a specialist and 
consultant in the field, developing projects for companies in Brazil who want to know 
more about American market trends and business opportunities for U.S. companies who 
are looking to move into the Brazilian and Latin American market. 
3 SeeDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 As she meets the classification as a member of the professions holding an advanced degree, a determination regarding 
the Petitioner's classification as an individual of exceptional ability is moot. 
3 
In response to the Director's request for evidence, the Petitioner offered an updated statement claiming: 
I intend to continue my career in the United States as a Marketing Manager, working in a 
capacity such as a business development specialist in the Business field. 
I propose to use my skills and knowledge, gained throughout my 18 years of professional 
experience, to work as a Marketing and Business Development Specialist for American 
and international companies in the U.S. inneedofanimprovementin their sales practices, 
as well as to keep their business consistent to be able to expand and diversify. 
I can improve a company's business and commercial relationships through my publicity 
and sales strategic vision. By doing so, I will ultimately create a greater competitive 
advantage for all corporations and clients I serve. My bold strategies, and even bolder 
results, reflect how my work can impact numerous U.S. present and future businesses, 
solidifying their social and market presence, and thus enhancing their overall business 
capacities. Besides, my work will benefit the U.S. economy. 
The Petitioner maintains on appeal that she "will support foreign companies, entrepreneurs, investors, 
and individual clients solidifying their cross-border initiatives in the United States" and her "proposed 
endeavor also focuses on providing advice to U.S. companies that are conducting cross-border deals, or 
planning to conduct cross-border activities, in Brazil." The Director determined that the Petitioner 
demonstrated the substantial merit of her proposed endeavor, and the record supports that conclusion. 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently shown 
the national importance of her 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. Here, the Petitioner 
must demonstrate the national importance of her providing specific marketing and business 
development services rather than the national importance of the position or the wide range of business 
fields or industries in which she intends to work. 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. We also stated that "[ a ]n endeavor that has significant potential to employ U.S. workers or has 
other substantial positive economic effects, paiiicularly in an economically depressed area, for 
instance, may well be understood to have national importance." Id. at 890. 
In her appeal brief, the Petitioner refers to herself as "a highly experienced professional" and emphasizes 
her "extensive knowledge," "18 years of progressive experience," "career record," and "professional 
experience." The Petitioner's experience, skills, and abilities in her field relate to the second prong of the 
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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 she proposes to undertake has national 
importance under Dhanasar' s first prong. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of her work. Although the 
Petitioner asserts that her "proposed endeavor impacts the national economy, thus serving nationally 
important matters," such as"[ d]riving a strong relationship between FDI [foreign direct investment], 
and U.S. economic performance" and "[s]ecuringforeign investment in the United States generally 
results in increasing the number of jobs for U.S. workers," she has not offered sufficient, specific 
information and evidence to demonstratethatthe prospective impactofher specific proposed endeavor 
rises to the level of national importance. Instead, the record contains evidence regarding general 
information, such as economic benefits of international trade, investment, international companies, 
global expansion, and FDI. In Dhanasar, we determined that the petitioner's teaching activities did 
not rise to the level of having national impmiance because they would not impact his field more 
broadly. Id. at 893. Here, the record does not show that the Petitioner's proposed endeavor of 
providing marketing and business development services stands to sufficiently extend beyond her 
potential or futuristic employers or clients, to impact the field or any other industries or the U.S. 
economy more broadly at a level commensurate with national importance. 
Likewise, the Petitioner argues that she "is already advancing her proposed endeavor, through her 
work wit~ I where she is helping with the national and international expansion of U.S. 
companies, and foreign companies in the U.S." The Petitioner provided a job letter indicating that she 
commenced employment wit~ I in September 2018. The Petitioner filed her petition in 
June 2018. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12);Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved ata future 
date after the petitioner becomes eligible under a new set of facts. Matter of lzummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). That decision further provides, citingMatterofBardouille, 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. Regardless, the Petitioner's ability to advance her proposed endeavor falls 
under the second prong of Dhanasar. Moreover, the Petitioner did not demonstrate how her work 
witH I as well as with any other prospective employer claims, broadly impacts the 
business field more broadly beyond her employer. 
Furthermore, the Petitioner has not established that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. While she references U.S. employment figures based on FDI, the Petitioner 
does not demonstrate how her specified proposed endeavor, either working fo~ lor any 
other company, would somehow influence those figures. Without sufficient information or evidence 
regarding any projected U.S. economic impact orjob creation attributable to her future work, the record 
does not show that benefits to the U.S. regional or national economy resulting from the Petitioner's 
marketing and development specialist services 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. 
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Because the documentation in the record does not establish the national importance of her 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 her eligibility under the second 
and third prongs outlined inDhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong oftheDhanasar analytical framework, we conclude 
that she has not demonstrated that she 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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