dismissed EB-2 NIW Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9046651 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a sales and marketing officer, seeks second preference immigrant classification as a an 
individual of exceptional ability, 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 the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for classification as an individual of exceptional ability, and that he had not had not established 
that a waiver of the required job offer, and thus of the labor certification, would be in the national 
interest. 
With the appeal, the Petitioner submits a brief asserting that he is eligible for exceptional ability 
classification and 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. 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. 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 ofjob 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." In addition, the regulation at 8 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 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 I&N Dec. 884 (AAO 2016). 1 Dhanasar states 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 offer and thus of a labor 
certification. 
The first prong, substantial merit and national importance, 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 
1 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) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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 
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 certification. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
The Petitioner argues for the first time on appeal that he "qualifies for visa classification as an 
advanced degree professional." To qualify as a member of the professions holding an advanced 
degree, a petitioner must show that his occupation meets the definition of a profession, and that he 
holds a qualifying advanced degree. With respect to his occupation meeting the definition of a 
profession, section 101 ( a )(32) of the Act does not include sales and marketing officers in the list of 
professions, and the Petitioner has not established that a U.S. baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into his occupation. 
Additionally, 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 alien 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 alien 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 alien has at least five years of progressive post-baccalaureate experience in the 
specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). Here, although the Petitioner contends that he has received 
the equivalent of a bachelor's degree, he did not submit evidence of this degree. Nor did he provide 
an academic credential evaluation to establish his degree's equivalency to a U.S. baccalaureate degree 
as required under 8 C.F.R. § 204.5(k)(3)(i)(B). Accordingly, the Petitioner has not demonstrated that he 
qualifies as a member of the professions holding an advanced degree. 
B. Exceptional Ability 
The Petitioner also asserts that he meets at least three of the regulatory criteria for classification as an 
individual of exceptional ability. In denying the petition, the Director determined that the Petitioner 
did not fulfill any of the regulatory criteria. On appeal, the Petitioner argues that he meets three 
criteria: an official academic record showing that he has a degree, diploma, certificate, or similar 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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award relating to the area of exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii)(A); membership in 
professional associations at 8 C.F.R. § 204.5(k)(3)(ii)(E); and recognition for achievements and 
significant contributions to the industry or field at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner's appeal brief does not specifically identify any erroneous conclusion of law or 
statement of fact relating to the Director's determinations for the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (F).4 Nor does the appeal brief even reference the Director's discussion 
regarding the aforementioned criteria. Additionally, while the Petitioner claims that he meets the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) based on certificates of participation he received for 
completing training programs hosted by the Sales and Marketing Institute (SMI) and I I I l he did not provide evidence identifying him as member of these organizations. Nor has 
the Petitioner demonstrated that their membership body is comprised of individuals who have earned 
a U.S. baccalaureate degree or its foreign equivalent, or that SMI and.__ ______ _.otherwise 
constitute "professional associations." Without offering specific arguments to overcome the 
Director's findings, the Petitioner has not established that he satisfies at least three of the criteria at 
8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional ability 
classification. 
C. National Interest Waiver 
The remaining issue to be determined 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. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of his proposed endeavor under the first prong of the Dhanasar 
analytical framework. 
Regarding his claim of eligibility under Dhanasar' s first prong, the Petitioner stated that he intends to 
continue to work as sales and marketing officer. He indicated that his proposed endeavor involves 
"conceptualizing, implementing, and overseeing innovative marketing strategies and campaigns -
spanning print, TV, online, collateral, and direct mail channels - to drive market impact and expansion 
for product launch and development as well as brand positioning efforts." The Petitioner further 
explained that his undertaking includes "developing and implementing effective sales strategies, directing 
large scale marketing campaigns, and managing personal, trusting client relationships to maximize 
company profits." The record contains a September 2019 job offer froml !offering him 
"the position of Sales and Marketing Officer."5 
In denying the petition, the Director concluded that the Petitioner had not demonstrated the national 
importance of his particular proposed endeavor. The Director indicated that the Petitioner's general 
4 For examfile, the Director indicated that the record included a "Ce1iificate of Registration" froml I university 
l College. but that the Petitioner did not submit evidence showing he received a degree or diploma relating to 
his specialty from that institution. 
5 This letter listed the Petitioner's job duties as "planning, developing and implementing [an] effective marketing 
communication campaign as well as ... promoting products, services and ideas." As the Petitioner is applying for a waiver 
of the job offer requirement, it is not necessary for him to have a job offer from a specific employer. However, we will 
consider information about his position to illustrate the capacity in which he intends to work in order to determine whether 
his proposed endeavor meets the requirements of the Dhanasar analytical framework. 
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statements about marketing strategies did not show that his proposed work stands to have broader 
implications in his field, significant potential to employ U.S. workers, or substantial positive economic 
effects at a level indicative of national importance. 
In his appeal brief, the Petitioner maintains that as a sales and marketing officer, his proposed endeavor 
has national importance because "marketing is an essential part of growing and maintaining a successful 
venture." He states that his proposed sales management work generates revenue for the company, 
provides better profit margins, helps the company reach its target audience, contributes to building the 
company's brand, and boosts the company 's market presence. In addition, the Petitioner contends that 
his undertaking helps the U.S. economy by "generating direct and indirect jobs," improves our country's 
"standard ofliving ," and creates "more competitive companies."6 
In determining national importance , the relevant question is not the importance of the field, industry , 
or profession in which the individual will work; instead we focus on the "the specific endeavor that 
the foreign national proposes to undertake." See Dhanasar , 26 I&N Dec. at 889. In Dhanasar, we 
further noted that "we look for broader implications" of the proposed endeavor and that "[ a ]n 
undertaking may have national importance for example , because it has national or even global 
implication s 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. 
To evaluate whether the Petitioner' s proposed endeavor satisfies the national importance requirement 
we look to evidence documenting the "potential prospective impact" of his work. Although the 
Petitioner 's statements reflect his intention to provide valuable sales and marketing services for his 
U.S. employer and future clients, he has not offered sufficient information and evidence to demonstrate 
that the prospective impact of his propo sed endeavor 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, we 
conclude the record does not show that the Petitioner 's propo sed endeavor stands to sufficiently extend 
beyond his employ er and future clientele to impact his field or the U.S. economy more broadly at a 
level commensurate with national importance . 
Furthermore , the Petitioner has not demonstrated that the specific endeavor he proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation . Without sufficient information or evidence regarding any projected U.S. economic 
impact or job creation attributable to his future work, the record does not show that benefits to the U.S. 
regional or national economy resulting from the Petitioner's sales and marketing projects would reach the 
level of "substantial positive economic effects" contemplated by Dhanasar. Id. at 890. Accordingly, 
the Petitione r' s propo sed work does not meet the first prong of the Dhanasar framework. 
6 The Petitioner also points to letters of support from former colleagues discussing his knowledge and work experience, but 
these letters do not explain the national importance of his proposed work under the Dhanasar's first prong. The Petitioner's 
knowledge and experience in his field relate to the second prong of the Dhanasar framework, which "shifts the focus from the 
proposed endeavor to the foreigu national." Id. at 890. The issue here is wheth er the specific endeavor that he propo ses to 
undertak e has national importanc e under Dhana sar' s first prong . 
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Because the documentation in the record does not establish the national importance of his 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 his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
as an individual of exceptional ability. Furthermore, as the Petitioner has not met the requisite first prong 
of the Dhanasar analytical framework, we conclude that he has not established he is eligible 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. 
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