dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 25965848 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 13, 2023 
Form 1-140, Immigrant Petition for Alien Worker (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 . 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 the Petitioner had not 
established 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa'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. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest. " Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 I&N Dec. 884, 889 
(AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion 1, grant a national interest waiver if the petitioner shows: 
• 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. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. 2 Accordingly, the remaining issue to be determined on appeal 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. 
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 "Professional Plan & Statement" 
indicating: 
I intend to continue using my experience and knowledge in the fields of marketing and 
business administration by working as a Marketing Manager in the United States. 
My extensive background experience in the areas of marketing, advertising, and media 
planning will be beneficial for companies in the U.S. looking to reach key targets in these 
segments. I have vast knowledge in marketing management, business development, 
advertising, account and campaign management, media planning, strategic planning, 
financial analysis, market research and analysis, personnel management, and leadership, 
working in multifunctional projects .... 
My career plan in the United States is to continue working with American companies that 
require my specialized knowledge, years of experience, and significant expertise. I intend 
to continue designing marketing and media strategies, maintaining positive working 
relationships with peers to facilitate company growth, and identifying viable opportunities 
for business development through extensive research. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a "Definitive 
Statement" reflecting: 
I intend to continue using my expertise and knowledge, gained through more than 
seventeen ( 1 7) years of experience and services in the field of marketing, to develop a 
marketing consulting agency, in the state of Florida. The company 
will provide services such as: brand strategy, consulting sessions, full analysis and 
industry research, digital marketing analysis, pre-investment viability studies, strategic 
planning, plan and managing budgets, and post-buy and performance reports. The 
company will cater to small and medium-sized companies in the U.S. 
2 The Director indicated that since the Petitioner qualifies a member of the professions holding an advanced degree, he 
need not evaluate whether the Petitioner also qualified as an individual of exceptional ability. 
2 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit but not 
its national importance. On appeal, the Petitioner states she "intends to continue using her expertise 
and knowledge to work as a marketing manager and contribute to the U.S. economy by developing 
and expanding her company in the nation." Moreover, the Petitioner asserts she "intends to continue 
her career as the Head of Marketing and sales, where she will plan, direct, coordinate marketing 
policies and programs," and her "ability to work in this vital sector will enhance the United States 
economy through her own company." As indicated, the Petitioner initially claimed that she intended 
to "continue working with American companies that require [her] specialized knowledge, years of 
experience, and significant expertise." However, in response to the Director's RFE, the Petitioner 
asserted that she intended to develop her own marketing company and submitted a business plan. 3 The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied 
from the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Further, a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further provides, citing Matter of 
Bardouille, 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. Accordingly, we will not consider the Petitioner's 
materially changed proposed endeavor of creating! I 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although the record 
contains evidence relating to the marketing manager profession and associated industry reports and 
articles, the Petitioner must demonstrate the national importance of her specific, proposed endeavor 
rather than the importance of marketing managers to the U.S. economy. In Dhanasar, we noted 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. 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 addition, the Petitioner stresses her "seventeen (17) years of progressive, professional experience 
in marketing." The Petitioner's experience and abilities in her field relate to the second prong of the 
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. 
Moreover, 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. The 
Petitioner did not offer specific information and evidence to corroborate her assertions that the 
prospective impact of continuing her work as a marketing manager 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. Id. at 893. 
Here, the record does not show through supporting documentation how her marketing management 
3 The Petitioner's "Professional Plan & Statement" and initial resume do not mention 
3 
stands to sufficiently extend beyond the businesses that might employ her, to impact the industry or 
the U.S. economy more broadly at a level commensurate with national importance. 
Finally, the Petitioner did not show that her initial proposed endeavor has significant potential to 
employ U.S. workers or otherwise offers substantial positive economic effects for our nation. Without 
evidence regarding any projected U.S. economic impact or job creation attributable to her future work, 
the record does not show any benefits to the U.S. regional or national economy resulting from her 
marketing manager position would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. at 890. 
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 in Dhanasar, therefore, would serve no meaningful purpose. 4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that she has not demonstrated eligibility 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. 
4 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
4