dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 13118753 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 22, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree, 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 submits additional documentation and a brief asserting that 
he 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 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 the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob 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. 
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 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 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. To perform 
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 offer 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 
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) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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 found that the Petitioner qualifies as a member of the professions holding the equivalent of 
an advanced degree. The remaining issue to be determined 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 the national importance of his proposed endeavor under the first prong of 
the Dhanasar analytical framework. 4 
The Petitioner initially indicates that he will continue "the management of marketing campaigns for 
[D-C-], an advertising agency serving large clients, [], with offices in Brazil and the U.S." In that 
capacity he would "continue designing marketing strategies, business plans, and maintaining positive 
working relationships with partners to facilitate a company's growth .... " Later, in response to the 
Director's request for evidence (RFE), the Petitioner changed aspects of his prospective endeavor to 
focus on the operation of two Florida entities, M- and V-, in which he holds ownership interests. He 
submits a business plan which discusses the prospective business operations of M- and V-. 5 
According to the business plan, the Petitioner forecasts that M- will realize gross receipts of $673,942 
and will employ nine individuals on a full-time or part-time basis in year five of its business operations. 
M- "will position itself as a marketing boutique," which will employ staff to "conduct comprehensive 
research to understand clients' needs and to develop approaches that will increase profits." M- will 
assist businesses "with product development strategies backed by extensive market research," and will 
help them to stay involved "in social media, participating with timely campaigns specifically designed 
to meet their audiences." M- will also "create campaigns that respond quickly to consumer 
preferences," and "will apply a tailored approach to defining and building clients' ecosystems by 
creating new growth platforms and increasing customer loyalty." He also presents M-'s federal 
income tax returns which respectively reflect gross receipts and net income of $9,640 and $5,276 in 
2018, and $10,677 and $4,886 in 2019. 
V- is to operate "as a spinoff ofM-" and will offer "technology and new media development" services, 
such as the "digitalization and volumetric image capture of homes and business locations," and the 
"development of design and entertainment icons that impress and symbolize cities and allow for 
interaction of brands with individuals in high traffic locations." 
The record also includes information about how marketing positively affects business organizations, 
consumer spending trends and statistics, the role of marketing in economic growth, and the economic 
outlook of advertising expenditures in the United States. The Petitioner submits articles discussing 
the job outlook for marketing managers, staffing shortages within the marketing industry, and the 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
5 We note that, while information about the nature of the Petitioner's proposed endeavor is necessary for us to determine 
whether he satisfies the Dhanasar framework, he need not have a job offer from a specific employer as he is applying for 
a waiver of the job offer requirement. 
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evolving discipline of marketing . The record shows that the Petitioner's proposed work as a marketing 
manager has substantial merit. 
In determining national importance, the relevant question is not the importance of the field, 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. 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. 
In his appeal brief, the Petitioner asserts that his "endeavor has the potential prospective impact to support 
foreign direct investment based on [his] history of facilitating such investment." He maintains that he is 
"qualified to facilitate cross-border projects between the U.S. and foreign markets, specifically [in] Latin 
America . . .. My vast experience and specialized skills in marketing and leading high-performance sales 
teams, allows me to navigate diverse and complex business problems with ease." However, the 
Petitioner's knowledge, skills, and experience 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. The issue 
here is whether the specific endeavor that he proposes to undertake has national importance under 
Dhanasar's first prong. 
The Petitioner also asserts on appeal that he "has a clear plan to benefit many U.S. businesses, not 
merely his own." He contends that through his companies' business operations "he will further the 
endeavor for many small business owners" and claims that he will "benefit the goal of strengthening 
[the small businesses] of the United States, [which] are a key and essential part of the U.S. economy 
and society." 
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. Although the 
Petitioner's statements reflect his intention to provide valuable marketing services through his 
companies to his current and future clients, he has not offered sufficient information and evidence to 
demonstrate that the prospective impact of his proposed endeavor 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. See 
Dhanasar, 26 I&N Dec. at 893. Here, we conclude the record does not show that the Petitioner's 
proposed endeavor stands to sufficiently extend beyond his companies, future employers, and clientele 
to impact his field or the U.S. economy more broadly at a level commensurate with national 
importance. 
Furthermore, the Petitioner has not demonstrated 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. Specifically, he has not shown that his company' s future staffing levels and 
business activity stand to provide substantial economic benefits in Florida or the United States. As 
noted, the Petitioner puts forth estimates that his business will employ nine staff-members and generate 
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$673,942 in revenue by the end of its fifth year of business operation. 6 Without sufficient information 
or evidence regarding 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 projects would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. Accordingly, the Petitioner's proposed work does not meet 
the fust 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 in Dhanasar, therefore, would serve no meaningful purpose. 7 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that he has not established 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. 
6 The Petitioner, however, does not adequately explain how these revenue and staffing forecasts were calculated. 
7 It is unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976); see also Matter of L-A-C-, 26 I&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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