dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 23349392 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 31, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a marketing professional, 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 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 merited, 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 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 any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. [If a doctoral degree is customarily required for the specialty, the non-citizen must a United 
States doctorate or a foreign equivalent degree. (delete if doctorate not an issue)] 
8 C.F.R . § 204.5(k)(2). 
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 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. 
II. ANALYSIS 
The Director determined in his decision that the Petitioner established her eligibility as a member of 
the professions holding an advanced degree, and we agree. 2 The issue on appeal is whether she meets 
the requirements of the three prongs of the Dhanasar analytical framework and otherwise merits a 
national interest waiver as a matter of discretion. 
The Petitioner is a marketing professional who holds a degree in tourism and hotel management and 
has worked in the tourism industry for many years. She initially indicated that her proposed endeavor 
would be to work with U.S. and multinational companies to design marketing strategies and identify 
opportunities for business development. She also stated that as a part of this endeavor she would 
restructure internal teams, adapt new technology, and expand market opportunities. The Petitioner 
did not identify a particular type or size of company she intended to work with, nor did she specify a 
geographic location in which she would work. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a new statement in 
which she proposed to work as an entrepreneur and CEO of her own company. She indicated that this 
company would primarily work with entrepreneurs and small businesses in the I !Florida area 
to help build and execute their marketing strategies. But the Petitioner did not indicate how her duties 
would be divided between managing the new company and performing the marketing duties she 
described earlier. 
The purpose of an RFE is to elicit information that clarifies whether eligibility for the benefit sought 
has been established as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 
103 .2(b )( 12). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). Here, the Petitioner made significant changes to her proposed endeavor in responding 
to the RFE that changed its nature and structure from employment as marketing professional with a 
U.S. company to working as an entrepreneur and CEO of her own company. As the Dhanasar 
framework requires an analysis of the substantial merit and national importance of the specific 
endeavor proposed by an individual, such a change is material to their eligibility for a national interest 
waiver. In addition, a petitioner must meet eligibility requirements for the requested benefit at the 
1 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 While the Director erred by stating that the Petitioner holds an advanced degree, the record establishes that she holds the 
foreign equivalent of a bachelor's degree from an institution of higher education in the United States, and that she has at 
least five years of progressive, post-degree experience in her specialty. 
2 
time of filing the petition. 8 C.F.R. § 103.2(b)(l). The Petitioner's plans to establish and direct a new 
company formed after the filing date of her petition cannot retroactively establish eligibility. 
A. Substantial Merit and National Importance 
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. 
As noted, the Director notified the Petitioner in his RFE that she had not established that her original 
proposed endeavor was of national importance. The record initially included articles about marketing 
managers and consultants in general, and also about the tourism industry, but this evidence did not 
concern her specific endeavor of designing market strategies for U.S. companies. 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 potential impact of "the specific endeavor 
that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. We also 
indicated that "we look for broader implications" of the proposed endeavor and that "[aa ]n undertaking 
may have national importance for example, because it has national or even global implications within a 
particular field." Id. 
The Petitioner's response to the RFE did not include additional evidence in support of her initial 
proposed endeavor, but proposed a new endeavor which constituted an impermissible material change 
to her petition. But even if the Petitioner had originally submitted evidence in support of her proposal 
to start and manage her own business with her initial filing, the additional evidence submitted with her 
RFE response does not sufficiently establish the national importance of this endeavor. 
On appeal, the Petitioner asserts that her proposed endeavor will "generate substantial ripple effects 
upon key commercial and business activities," and that it is a "vital aspect of U.S. companies' public 
relations and advertisement." She also asserts that by helping U.S. companies in foreign markets, and 
particularly in Brazil, her endeavor will create U.S. jobs. However, as the Director noted in his 
decision, the evidence does not show that her company and its activities would have economic impacts 
beyond the clients it would serve such that it will broader implications for businesses in the United 
States. 
We stated in Dhanasar 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 Petitioner states that 
her business would be located inl I Florida, in a designated HUBZone, and the business plan 
includes projections that the company would employ 40 workers and achieve revenue of nearly $3 
million within its first five years of operation. Regarding the business' proposed location, the 
Petitioner indicates that a HUBZone is a historically undernsed business zone located in either a 
qualified census tract, a county below certain income and unemployment standards, or lands within 
3 
Indian reservations, but does not specify in which of these her business would be located. 3 Further, 
the copy of the map provided by the Petitioner indicates that only portions ofl I lie within a 
designated HUBZone. As she has not provided a specific physical location for her proposed company, 
or provided any evidence of her intention to purchase or lease office space at a particular location, she 
has not shown that it would be located in an economically depressed area. 
In addition, even if the business were to be physically located within an economically depressed area, 
the employment 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. Ans while 
the business plan projects the employment of 40 workers within five years, the Petitioner has not 
established that this addition to the area's workforce would be of sufficient significance to rise to the 
level of national importance. 
The Petitioner has not demonstrated that her proposed endeavor would be of national importance, and 
she therefore does not meet the requirements of the first prong of the Dhanasar analytical framework. 
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. 
As the Petitioner has not established that she meets the first prong of the Dhanasar framework, she is 
not eligible for and does not merit a national interest waiver. However, we will briefly discuss whether 
she is well positioned to advance her proposed endeavor. We first note that her degree in tourism and 
hotel management is not related to her proposed endeavor of designing market strategies for U.S. 
businesses. In addition, although she claims to possess years of experience in the field of marketing, 
this experience is not well documented in the record. For instance, she claims to have worked as a 
marketing and operations director for0Brazil from May 2003 to October 2010, but the dates of her 
employment do not match those stated in a letter from the General Director of this company. 
Specifically, he indicates that he began working for Brazil in 2006, approximately three years 
after the Petitioner states she began her employment there, but that he invited her to take the marketing 
and operational director position. Other letters from clients focus on the Petitioner's ability to plan 
travel activities and do not provide details regarding her work as a marketing professional. This 
evidence does not establish that she is well positioned to advance her proposed endeavor. 
III. CONCLUSION 
The Petitioner has not established her eligibility under either the first or second prong of the Dhanasar 
framework, and she is thus not eligible for and does not merit a national interest waiver. While she 
3 The regulations regarding the HUBZone Program at Title 13 C.F.R. § 126.103 list seven different types of qualifying 
areas, only some of which have requirements related to income and unemployment. 
4 
asserts on appeal that she meets the third Dhanasar prong, we will reserve that issue. 4 The appeal will 
be dismissed for the reasons state above. 
ORDER: The appeal is dismissed. 
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). 
5