remanded EB-2 NIW Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 20434426 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 25, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an advanced degree professional, 
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 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 that he 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. Upon de nova review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision . 
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. 
Section 101(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
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. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition to the definition of "advanced degree" provided at 8 C.F.R. § 204.5(k)(2), the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B) provides that a petitioner 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." 
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 
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 See also Poursina v. USCIS, 936 F .3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCIS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
2 
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. See Id. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
A. Eligibility for the Requested Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification. 3 For the reasons discussed below, we 
withdraw the Director's conclusion that the Petitioner has established that he is an advanced degree 
professional. 
The record includes employment verification letters and copies of the Petitioner's "bachelor's degree 
of [t]ourism [o]perator" and transcript froml !University in Turkey, along with an "Education 
Evaluation" which concluded that his degree is the equivalent of a U.S. bachelor's degree in "tourism 
management." The Director determined that the Petitioner is an advance degree professional on the 
basis of his degree equivalency and more than five years of post-baccalaureate experience. As noted 
above, however, the definition of advanced degree at 8 C.F.R. § 204.5(k)(2) requires the experience 
to be "in the specialty." Here, the Petitioner's degree is in the field of tourism operator/management 
and the employment verification letters indicate that the Petitioner has been working mainly in the 
pharmaceutical industry 4 since 2007, generally as a sales representative. 
In light of the above, the Director should determine anew whether the Petitioner has sufficiently 
demonstrated that he qualifies for the underlying classification as an advanced degree professional 
consistent with the regulations at 8 C.F.R. § 204.5(k)(2) and (3)(i)(B). 
B. The Proposed Endeavor 
In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national 
proposes to undertake." 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: Sales and Marketing Manager 
Part 6 - Basic Information About the Proposed Employment 
Section 1. Job Title: Sales and Marketing Manager 
Section 2. SOC Code: 12-2023 
3 The Petitioner does not claim that he is an individual of exceptional ability. 
4 The Petitioner worked for a furniture company as a sales representative for 7 months from 2014 to 2015. 
3 
Section 3. Nontechnical Description of Job: Plan, direct, or coordinate the actual 
distribution or movement of a product or service to the customer. 
The Petitioner's "Professional Plan & Statement" (plan) submitted with the initial filing confirmed his 
intentions to work as a sales manager and indicated that his proposed endeavor "is to continue working 
with American companies ... implementing resourceful sales strategies, designing marketing plans, 
maintaining positive relationships with [his] professional colleagues, and identifying any opportunities 
for business development through extensive research." 
In response to the Director's request for evidence (RFE), the Petitioner indicated in an updated plan that 
he "intend [ss] to continue his career as an [ e ]ntrepreneur. .. and [to] organiz[ e] national and even local 
sports organizations and organiz[ e] sports activities at the international level to increase international 
travel." The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § l 03.2(b )( 12); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Further, the purpose ofan RFE is to elicit information 
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is 
filed. See 8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(l2). 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). 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. 
The Director should, therefore, consider whether the information provided by the Petitioner in the RFE 
response provided more specificity to the proposed endeavor as initially described or changed the 
endeavor. 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. 
Accordingly, the Director should determine whether the RFE response presented a new set of facts 
regarding the proposed endeavor, which is material to eligibility for a national interest waiver. 
See Matter of Michelin Tire C01p., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 
I&N Dec. at 889-90. 
III. CONCLUSION 
For the reasons discussed above, we are remanding the petition for the Director to consider whether the 
Petitioner 1) qualifies for EB-2 classification as an advanced degree professional, the threshold 
determination in national interest waiver cases and 2) has provided sufficient and consistent 
information regarding his proposed endeavor to determine whether a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. The Director may request any 
additional evidence considered pertinent to the new determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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