dismissed EB-2 NIW Case: Marketing Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 18706425 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 12, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a marketing management specialist, 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 theN ebraska Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but 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 asserts she 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; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 
2010). 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 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. 
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 Dhanasarstates 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 off er and thus of a labor certification. 
The first prong, substantial merit and national impmiance, 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. In performing 
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 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01). 
2 See also Poursinav. USCIS, 936F.3d 868, 2019 WL4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
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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) 
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 ce1iification. 3 
II. ANALYSIS 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." Id. at 889. On the Form I-140, Immigrant Petition for Alien Worker, the 
Petitioner provided the following information: 
Part 5 - Additional Information About the Petitioner 
Section 11. Occupation: Marketing Management Specialist 
Part 6 - Basic Inf mmation About the Proposed Employment 
Section 1. Job Title: Marketing Management Specialist 
Section 2. SOC Code: 11-2021 4 
Section 3. Nontechnical Description of Job: Evaluate products/services and develop 
appropriate strategies. 
The Petitioner also submitted an email frotrj I offering her the position of marketing 
management specialist with a start date of December 15, 2019. 
The Director issued a request for evidence (RFE) which clearly explained "that an occupation (marketing 
management specialist) and the general work perfmmedin that occupation do not constitute an endeavor." 
In response, the Petitioner provided a business plan for her own social media marketing company, 
indicating that she would be the chief executive officer, but failed to provide any explanation for the 
change from a marketing management specialist to that of an entrepreneur and chief executive officer. 5 
As discussed by the Director, the Petitioner must establish eligibility at the time of filing. 8 C.F.R 
§ 103.2(b )(12);MatterofKatigbak, 14I&NDec. 45, 49(Comm'r 1971). Further, the purpose ofanRFE 
is to elicit information that clarifies whether eligibility for the benefit sought has been established, as of 
thetimethepetitionisfiled. See8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(l2). Apetitionermay 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, 
material changes are made to the initial request for approval, a petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. 
3 See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs. 
4 This standard occupational classification (SOC) code 11-2021 corresponds to the occupation of marketing managers. See 
https://www.onetonline.org/link/summaiy/l l-2021.00 (last accessed Oct. 12, 2021). 
5We note that the Petitioner also failed to address the change on appeal. 
3 
The information provided by the Petitioner in the response to the Director's RFE did not clarify or 
provide more specificity to the proposed endeavor as initially described, but rather changed its focus. 
Accordingly, the RFE response presented a new set of facts regarding the proposed endeavor, which 
is material to eligibility foranationalinterestwaiver. See Matter of Michelin Tire Corp., 17 I&N Dec. 
248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90. 
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. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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