dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 18967925 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 29, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a marketing manager, seeks second preference immigrant classification as an 
individual of exceptional ability in the sciences, arts or business, 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). After a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 
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. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center determined thatthe Petitioner qualifies for the underlying 
classification and that her proposed endeavor has substantial merit. Nevertheless, the Director denied 
the petition, concluding that the evidence did not establish that the proposed endeavor is of national 
importance, that she is well positioned to advance her endeavor, or that a waiver of the requirement of 
a job offer would be in the national interest. Accordingly, the Director determined that the Petitioner 
had not established eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner reasserts her eligibility, arguing that the Director 
did not properly weigh the evidence and erred in the decision. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), 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. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
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documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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 l&N Dec. 884 (AAO 2016). 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). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionaiy in 
nature). As a matter of discretion, the national interest waiver may be granted 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
11. ANALYSIS 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the [individual] has a United States advanced degree 
or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitioner may present 
"[ a ]n official academic record showing that the [individual] has a United States baccalaureate degree 
or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) 
showing that the [individual] has at least five years of progressive post-baccalaureate experience in 
the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
The Director concluded that the Petitioner qualifies for the underlying classification. The record contains 
evidence that the Petitioner earned a four-year foreign degree in social communition in 2006. In support 
of the U.S. equivalency of this foreign education, the Petitioner submitted an evaluation from I I 
evaluator.I I Because USCIS does not accept equ ivalency evaluations of work experience, 
we examine the evaluation for the academic equivalency portion of the evaluation only. The evaulation 
largely contains templated language found in numerous evaluations provided by other evaluation service 
providers and submitted on behalf of other petitioners. The only information specific to the Petitioner's 
education is a bulleted list of several courses from the Petitioner's transcript. This list and the evaluator's 
conclusions following it are alone insufficient to establish the U.S. equivalency of the Petitioner's 
education. To illustrate, the evaluator lists some of the Petitioner's courses including "introduction to 
journalism," "introduction to radio and television," and "histoiy of advertising in Brazil." The evaluator 
then concludes that these courses are requisite components of a bachelor's degree education in the United 
States. It is not apparent howthe evaluatorarrivedatthe conclusion that"histoiy ofadvertisingin Brazil," 
for example, is a general studies course or that it is a requisite component of U.S. bachelor's degree 
programs. Accordingly, we conclude that this evaluation is of little probative value in this matter. 
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
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accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. Id. Here, the evaluator does not demonstrate specific knowledge of the Petitioner's 
foreign university or how her credit hours, grades, and the content of her courses translate to a U.S. 
education, nor does the evaulator offer sufficient analysis or support for the conclusions contained in the 
evaluation. As such, we conclude thatthis evaluation is insufficientto establish theacademicequivalency 
of the Petitioner's foreign education. 
We acknowlege an advisory opinion of the Petitioner's eligibilitr under the national interest waiver 
framework, which the Petitioner obtained frorri.,...._----,-----,-----,----,-~ a professor ac=Juniversity. This 
advisory opinion does not not analyze the Petitioner's foreign education and therefore is not probative of 
its U.S. equivalency. While the Petitioner also submitted evidence of two U.S. professional certificates, 
one in business management with an emphasis in marketing and the other in marketing, both of which 
she earned in 2007, the record does not reflect that this education rises to the level of any U.S. degree. 
Based on the information contained in the record, the Petitioner has not met her burden to establish the 
U.S. equivalency of her foreign education in accordance with 8 C.F.R. § 204.5(k)(3)(i)(B). The 
Petitioner should be prepared to address this evidentiary shortcoming in any of her future filings. 
Nevertheless, we reviewed the AACRAO EDGE database to determine whether the Petitioner's 
foreign education is comparable to any U.S. degree. The AACRAO EDGE database is a reliable 
resource concerning the U.S. equivalencies of foreign education. For more information, visit 
https://www.aacrao.org/edge (last visited Oct. 29, 2021 ). The database indicated that the Petitioner's 
four-year "Tftulo de Bacharel" in social communication is the equivalent of a U.S. bachelor's degree. 
While the Petitioner has not provided sufficient evidence to support a finding that her foreign degree 
is the equivalent of U.S. bachelor's degree, we accept and rely upon the information found in the 
AACRAO EDGE database to conclude that she holds the equivalent of a U.S. bachelor's degree. 
The record additionally contains letters from former employers describing the Petitioner's wotk 
experience in the marketing field of endeavor. Collectively the letters evidence that the Petitioner has at 
least five years of post-baccalaureate experience in her field. Accordingly, we conclude that the 
Petitioner qualifies for the underlying classification as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether she qualifies for a national interest waiver. For 
the following reasons, we agree with the Director that the evidence does not establish that the Petitioner 
qualifies for a national interest waiver. 
On the Form 1-140, Immigrant Petition for Alien Worker, which the Petitioner filed in June 2019, she 
provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Marketing Manager 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Marketing Manager 
Section 2. SOC Code: 11-2021 
Section 3. Nontechnical Job Description: Plan, direct, or coordinate marketing policies 
and programs, such as determining the demand for products and services offered by a firm. 
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The Petitioner also stated that her career plan in the United States is to "continue working as a 
Marketing Manager with multi-national companies, providing indispensable guidance regarding 
national projects and cross-border contracts involving the development of different projects in the 
U.S., Latin America and Brazil." She plans to "contribute to the development of companies by helping 
them to achieve their sales targets, providing increased infrastructure standards, designing new 
strategies for marketing development, and improving their turnover and profitability." She will also 
"plan, procure, direct, coordinate and execute sales within her field." 
In the professional plan and statement that she submitted with the initial filing, she described her 
proposed endeavor as: 
[W]orking in the fields of market research management, marketingstrategyforspecific 
demographics, marketing in the digital content sector, advertising and brand design as 
a Marketing Manager ... implementing ingenious marketing strategies, designing 
marketing plans, maintaining positive relationships with my professional colleagues, 
and identifying many opportunities for business development through extensive 
research. 
The Director issued a request for evidence (RFE) which informed the Petitioner that she did not state 
which organization plans to utilize her marketing skills. Specifically, the Director noted that without 
knowing exactly where the Petitioner would be working, USCIS was unable to determine the impact 
of the Petitioner's contribution and whether the benefits of her claimed endeavor would be of national 
importance. 
In her RFE response, the Petitioner stated that she would continue her career as a "marketing manager 
and entrepreneur" and that she founded two U.S. companies.I I and 
~----------~where she "crafts and manages strategic, commercial, and marketing 
strategies for the development of new business clients, serving U.S. individuals with Autism Spectrum 
Disorder" (ASD). She indicated that her marketing activities stem from operating her two U.S. 
companies for which she has "organized all departments, including planning, administration, human 
resources, and finance ... developed, and managed, all marketing initiatives, including the expansion 
of the company's portfolio of services, as well as the acquisition of new contributors .... " 
The Petitioner further described her proposed endeavor as operating her U.S. businesses as well as 
shaping and restructuring the way individuals, business, and organizations view ASD. Specifically, 
the Petitioner will help Americans with ASD needing help to improve their daily functions and 
response to daily functions, and she will reach these clients through innovative branding, sales, and 
marketing tactics. Her endeavor includes identifying viable opportunities for business development 
via cross-border contracts, developing her own business' sales, marketing, and business development 
plans, as well as advising her businesses on highly specific services, such as consumer analysis digital 
tactics and brand development, among others. She stated that her companies are necessary to assist 
with the growing numbers of individuals affected by ASD and that she can proactively respond to 
nationwide disparities between the cost and quality of healthcare by stream I in ing services, maximizing 
efficiency, and employing innovative approaches and techniques. 
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The Petitioner provided an updated professional plan and statement in her RFE response, which 
contained the following description of her proposed endeavor: 
[O]ffer my expertise as a Marketing Manager to assist U.S. companies in need of 
branding, re-organization, and management to optimize and increase profit through 
growth within their industry market or expand into other markets. More specifically, I 
have created two companies for which I am branding, organizing, and managing for 
further market penetration to assist with a nationally important issue ... I propose to . 
. . provide guidance and direction in the areas of marketing, advertisement, business 
management, negotiation, sales forecasting, market analysis, and establishment of 
marketing policies and programs for my U.S. companies within the Mental Health 
Industry. 
The Director noted that the Petitioner repeatedly referred to herself in the initial filing as a "marketing 
manager" and then in her RFE response, she added "entrepreneur," which shifted the focus of her 
proposed endeavor. We agree. The Petitioner described her proposed endeavor in the initial filing as 
continuing to work as a marketing manager for multi-national companies and in her RFE response, 
she added work pertaining to the ownership and operations of her local South Florida businesses that 
assist children with ASD. To further confuse the focus, the Petitioner also stated that while operating 
her U.S. businesses, she also intends to shape and restructure the way other individuals, businesses, 
and organizations "view and tackle" ASD. In Dhanasar, we held that a petitioner must identify "the 
specific endeavor that the foreign national proposes to undertake." Id. at 889. We conclude that the 
Petitioner has not identified her specific endeavor. 
In addition to not identifying her specific endeavor, the Petitioner's businesses were not in existence 
at the time of her initial filing in June 2019. The record reflects that the Petitioner formedl I I I inl 12020 and while the record does not contain evidence to suggest that the 
I I is an official business operating in the United States, the Petitioner 
stated that she formed this company in 2020. USCIS regulations affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. 
§ 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility or after 
a petitioner becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248,249 (Reg'l Comm'r 1978). Furthermore, as the Director noted, a petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USC IS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
On appeal, the Petitioner relies upon the evidence she previously submitted to assert that the proposed 
endeavor has not materially changed and that she has not deviated f ram her original plan. Although 
we acknowledge this claim, the Petitioner has not provided sufficient or consistent evidence to support 
it. Upon our de nova review, we conclude that the Petitioner has changed her focus from marketing 
management to business ownership and operations, entrepreneurship, streamlining healthcare for 
people on the autism spectrum, autism awareness, and autism-related customer service. While 
marketing might assist her in these pursuits, it appears ancillary to them. We cannot ascertain how 
much of the Petitioner's time will be spent on marketing management and how much time she will 
devote to the ownership and operations of her business. As the Petitioner has not identified any other 
organizations to which she will provide her marketing services, it is further unclear whether the 
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Petitioner intends to continue helping multi-national companies as originally stated and how much 
time, if any, she will devote to such external activities. Accordingly, we conclude that both the focus 
of her endeavor as well as her field of endeavor has materially changed. 
To illustrate further, the evidence in the record supports a finding that the Petitioner founded her U.S. 
businesses with the goal of addressing ASD, not working as a marketing manager. As already noted, 
her businesses did not exist at the time off iling and therefore working as a marketing manager for 
them could not have been the focus of her initially described endeavor. Further support for this 
conclusion can be found in her professional plan and statement, which included her goal of delivering 
the most effective evidence-based therapy for families impacted by ASD living in thel I Florida 
region and providing widespread access to quality treatment for individuals on the autism spectrum. 
Upon our examination of the Petitioner's business plan, which she submitted in her RFE response, we 
conclude that the Petitioner devoted a significant portion of her plan to providing background on ASD 
rather than on her marketing plan for her businesses and/or other organizations. Her RFE response 
also contained articles and reports on the healthcare industry and ASD, which shifted the focus away 
from the marketing and business sectors that she emphasized in the initial filing. Finally, two of the 
Petitioner's four recommendation letters submitted in her RFE response discuss the Petitioner's 
proposed endeavor in terms of treatment for individuals on the autism spectrum rather than in terms 
of marketing management for her businesses or other organizations. 
The RFE response presented a new set of facts regarding the proposed endeavor, which is material to 
eligibility for a national interest waiver. See Matter of Michelin Tire Corp., 17 l&N Dec. 248 
(Reg'l Comm'r 1978); see also Dhanasar, 26 l&N Dec. at 889-90. It appears as though the Petitioner 
sought to address the Director's concerns regarding what organization would utilize her marketing 
skills, but in so doing, she has significantly changed her proposed endeavor. As stated, a petitioner 
may not make material changes to a petition in an effortto make a deficient petition conform to USCIS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, 
material changes are made to the initial request for approval, a petitioner mustf ilea new petition rather 
than seek approval of a petition that is not supported by the facts in the record. 
In determining whether an individual qualifies for a national interest waiver, we must rely on the 
specific proposed endeavor to determine whether (1) it has both substantial merit and national 
importance and (2) the foreign national is well positioned to advance it under the Dhanasar analysis. 
Because the Petitioner has not provided consistent information regarding her proposed endeavor, we 
cannot conclude that she meets either the first or second prong, or that she has established eligibility 
for a national interest waiver. 
Ill. CONCLUSION 
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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