remanded EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 14736194 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 01, 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 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 the Texas Service Center denied the petition, concluding that while the Petitioner 
established eligibility for the underlying EB-2 immigrant visa classification as a member of the 
professions holding an advanced degree , the record did not establish that a waiver of the 
classification's job offer requirement would be in the national interest. On appeal, the Petitioner 
submits new evidence and asserts that he merits a national interest waiver. 
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 withdraw the decision and 
remand this matter for the entry of a new decision consistent with the analysis below. 
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. 
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. 
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 T&N Dec. 884. 1 Dhanasar states that after EB-2 eligibility has been established, USCTS 
may, as a 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. 2 
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. 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines 'exceptional ability" as "a 
degree of expe1iise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expe1iise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dlzanasar. 26 l&N Dec. at 886 n.3. 
2 
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 
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 
The Petitioner submitted evidence that he has served as a business manager and executive in the area 
of marketing for several firms over the past three decades, mainly in Brazil. He earned a Master of 
Business Administration degree from I !University in 1985. Although not mentioned in the 
Director's decision, this evidence establishes that he qualifies for the underlying EB-2 visa 
classification as a member of the professions holding an advanced degree. Therefore, the sole 
remaining issue is whether he qualifies for and otherwise merits a waiver of the job offer requirement, 
and thus of a labor certification. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner did not describe his proposed endeavor with his initial filing, but referred in broad terms 
to the value of his marketing expertise to the United States. In response to the Director's request for 
evidence, he provided a statement in which he described the dual nature of his proposed endeavor. He 
first mentioned that he has developed a marketing plan for an online fashion jewelry business, "to be 
executed in 2020 using personal funds for the initial capital," and submitted a copy of this marketing 
plan. The Petitioner also names two companies that "are interested in utilizing my marketing services 
as a consultant," and submitted letters from these companies expressing interest in his services as an 
outside marketing consultant. 
Regarding the substantial merit of the Petitioner's proposed endeavor, the Director stated in his 
decision that it may be demonstrated through either "the potential to create a significant economic 
impact," or through "research in a critical area of need such as cancer, or clean air." However, this 
statement improperly limits the consideration of substantial merit to two specific factors, whereas the 
Dhanasar decision states that merit "may be demonstrated in a range of areas such as business, 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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entrepreneurialism, science, technology, culture, health, or education." In addition, the decision 
further states that the potential to create a significant economic impact "may be favorable but is not 
required." The Director's decision thus imposes a higher burden on the Petitioner to establish the 
substantial merit of his endeavor than is required under the Dhanasar framework. 
In addition, the Director wrote in his decision that "the term Substantial [sic] is not superfluous," but 
did not provide an analysis of the substantiality of the merit of the Petitioner's proposed endeavor. 
While we agree that the term "substantial" has meaning, the Director did not then explain why the 
endeavor's merit was insufficiently substantial, but listed arguments that the Petitioner had made in 
support of the first prong. An officer must fully explain the reasons for denying a visa petition in order 
to allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity for 
meaningful appellate review. See 8 C.F.R. § 103.3(a)(i); see also Matter of M-P-, 20 I&N Dec. 786 
(BIA l 994)(finding that a decision must fully explain the reasons for denying a motion to allow the 
respondent a meaningful opportunity to challenge the determination on appeal). On remand, the 
Director should consider whether the Petitioner's proposed endeavor has substantial merit within the 
Dhanasar framework, and provide an analysis of the factors considered in making his decision. 
The Director also misapplied the Dhanasar framework in determining that the Petitioner's proposed 
endeavor is not of national importance. He states that the Petitioner "has gone on record" that he has 
been retired since 2016, apparently arriving at this conclusion based upon the record of the Petitioner's 
employment included on Form G-325A. We first note that, as the Petitioner points out on appeal, the 
record does not include such a statement, and the Director improperly relied upon an inference in 
reaching this conclusion. In addition, although the Petitioner's current employment may shed light 
upon and support his proposed endeavor, the Dhansar decision is clear that it is the potential of the 
prospective endeavor which is considered under the first prong. 4 Therefore, on remand the 
Director should evaluate the proposed endeavor's potential prospective impact as stated in the record 
to determine whether it is of national importance. 
B. Whether the Petitioner is Well Positioned at Advance the Proposed Endeavor 
As stated above, we consider several factors in determining whether a petitioner has established that 
they are well positioned to advance their proposed endeavor, including, but not limited to, a 
petitioner's: 
• 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. 
However, the Director stated that the second prong "focuses on whether the beneficiary has the 
qualifications to do what he has stated he can do in the field." This statement improperly limits the 
factors considered to only one or two of those specifically listed in Dhanasar, in addition to foreclosing 
consideration of other factors not included in that inexhaustive list. 
4 Dhanasar at 889 ("In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact.") 
4 
In addition, the Director again relied upon his incorrect assertion that the Petitioner states that he has 
retired in evaluating whether he is well positioned to advance his proposed endeavor. Here, although 
the Petitioner's recent employment history is an important factor in making that determination, on 
remand the Director must consider and analyze all of the evidence in the record pertaining to the 
second prong of the Dhanasar framework. 
C. Whether on Balance it Would be in the National Interest to Grant a Waiver 
As the Director did not conclude that the Petitioner met the first two prongs of the Dhanasar 
framework, he determined that it would not be in the national interest to grant a waiver of the job offer 
requirement, and thus a labor certification. On remand, if he determines after reconsideration and 
analysis that the Petitioner meets the first two prongs, the Director should evaluate the Petitioner's 
statements and evidence in support of the third prong. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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