dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 25611604 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 10, 2023 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a marketing manager, seeks classification as a member of the professions holding an 
advanced degree or of exceptional ability . See Immigration and Nationality Act (the Act) section 
203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer 
requirement that is attached to this EB-2 immigrant classification. See section 203(b )(2)(B)(i) of the 
Act, 8 U.S.C. § 1153(b )(2)(B)(i) . U.S. Citizenship and Immigration Services (USCIS) may grant this 
discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national 
interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that they had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 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 l&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 petition 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. 
Whilst 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) . Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen 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 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, in light of the nature of the 
noncitizen's qualification or the proposed endeavor, it would be impractical either for the noncitizen 
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 noncitizen's 
contributions; and whether the national interest in the noncitizen's contributions is sufficiently urgent 
to warrant forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding 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 of a labor certification, would be in the national interest. 
Initially in the Form I-140 the Petitioner stated that their proposed endeavor was to work as a 
marketing manager. Their professional plan and statement provided detail about their intent to 
continue to work in the field of marketing with American companies, specifically those looking to 
target Latin America and the Caribbean for business prospects. In support, the Petitioner provided 
several letters from U.S. employers attesting that they intended to hire the Petitioner as a marketing 
manager or similar job title. The Director considered the merit of the proposed endeavor but issued a 
request for additional evidence (RFE) to determine its national importance as well as eligibility under 
the remaining prongs of the Dhanasar framework. 
The Petitioner's response significantly departed from the endeavor they proposed in their initial filing. 
In the response to the RFE, the Petitioner attempted to transform themselves from a marketing manager 
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to a CEO of an entrepreneurial marketing consultancy. The Petitioner changed the professional plan 
and statement by submitting a materially different update wherein they planned to open their own 
marketing consulting agency. The Petitioner's reversal introduced ambiguity into their proposed 
endeavor which prevented analysis into its substantial merit or national importance. So the Director 
correctly denied the petition. On appeal, the Petitioner makes substantially the same arguments as 
they did in the RFE but attempts to characterize the transfiguration of their proposed endeavor as a 
minor clarification and not the wholesale change that it is. 
Our authority over the USCIS service centers, the office that adjudicated the immigrant petition, is 
comparable to the relationship between a court of appeals and a district court. Accordingly based on 
a de novo review we adopt and affirm the Director's decision that the Petitioner's inconsistent 
representations obscured the nature of their proposed endeavor rendering it impossible to evaluate its 
substantial merit or national importance. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); 
see also Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996) (joining "every court of appeals 
that has considered this issue" holding that an appellate body may affirm the lower court's decision 
for the reasons set forth therein); Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting the practice 
of adopting and affirming the decision below has been "universally accepted by every other circuit 
that has squarely confronted the issue"); Chen v. INS, 87 F3d. 5, 8 (1st Cir. 1996) (joining eight U.S. 
Courts of Appeals in holding that appellate adjudicators may adopt and affirm the decision below as 
long as they give "individualized consideration" to the case). The Director gave individualized 
consideration of the evidence the Petitioner submitted with their initial petition and their RFE 
response. 
A petitioner must establish eligibility for the benefit they are seeking at the time the petition is filed. 
See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 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). 
The Director's efficient analysis correctly homed in on the unavoidable fact that the Petitioner's 
proposed endeavor was ill-defined and amorphous due to the material and significant changes made 
when they responded to the RFE. The addition of the Petitioner's entrepreneurial business does not 
enhance the proposed endeavor. It transforms it into a wholly different one. The proposed endeavor 
changed from marketing manager employed by U.S. employers ideally with Latin American and 
Caribbean business interests to functioning as the CEO of their own entrepreneurial business. The 
Dhanasar framework cannot be applied to two dueling proposed endeavors. A petitioner must identify 
the specific endeavor they propose to undertake. See Matter of Dhanasar, 26 I&N Dec. at 889. It is 
not possible to determine the substantial merit and national importance of an endeavor when a 
Petitioner cannot consistently articulate the nature of the endeavor. 1 
1 On appeal, the Petitioner invokes their right to due process alleging that the Director's denial deprived them of further 
review and a fair chance to obtain the immigration benefit. The Petitioner's initial petition had deficiencies that warranted 
further investigation, prompting the Director to issue an RFE. The Petitioner responded to the RFE with documentation 
reflecting a wholesale material change. The Director correctly denied the petition and this appeal follows. It is not apparent 
what action the Petitioner finds violative of due process. In any event, we have no authority to entertain constitutional due 
process challenges to lawful USCIS action. Cf Matter of Salazar-Regino, 23 I&N Dec. 223,231 (BIA 2002). Even ifwe 
did have that authority, the parties must demonstrate a showing of "substantial prejudice" to prevail on a due process 
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And the Director further found that the record does not satisfy the second or third Dhanasar prongs. 
A Petitioner cannot be appropriately evaluated for how well they are situated to advance a proposed 
endeavor when the proposed endeavor is not evident. And the absence of a well-defined proposed 
endeavor can render balancing the benefit to the United States to waiving the job offer requirement 
and consequently a labor certification impossible. 
Because the Petitioner has not established that the proposed endeavor has substantial merit or national 
importance, as required by the first Dhanasar prong, they are not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
See INS v Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings 
on issues the decision of which is unnecessary to the results they reach"); 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner does not merit a favorable exercise of discretion to waive the requirement 
of a job offer, and therefore a labor certification. 
ORDER: The appeal is dismissed. 
challenge. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004). The Petitioner has not shown any violation of 
the regulations that resulted in "substantial prejudice." 
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