remanded EB-2 NIW Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 30, 2023 In Re: 28951290 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a sales manager, seeks employment-based second preference (EB-2) 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 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 the record did not 
establish that the Petitioner merits, as a matter of discretion, a national interest waiver. 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 ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F) . 1 Meeting 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, grant a national interest waiver if 
the petitioner demonstrates that: 
• 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. 
II. EB-2 CLASSIFICATION 
In his initial filing, the Petitioner sought classification as either a member of the professions holding 
an advanced degree or as an individual of exceptional ability. The Director determined that, based 
upon the Petitioner's official academic records from I I and an 
education credential evaluation, the Petitioner holds the foreign equivalent of a bachelor's degree in 
marketing from an accredited college or university in the United States. 4 However, the Director did 
not complete this analysis by evaluating the evidence of the Petitioner's post-degree work experience, 
nor did they reach a conclusion regarding his eligibility for the EB-2 classification. Per the below, we 
conclude that the Petitioner is not eligible as an advanced degree professional. 
The record shows that the Petitioner's bachelor's degree was conferred on September 14, 2015. 
Therefore, in order to establish his eligibility as an advanced degree professional, the record must 
show that he gained five years of progressive work experience in the fields of sales and marketing 
after that date. In addition, since a petitioner must establish eligibility for the requested benefit at the 
time the petition is filed, evidence of work experience gained after October 19, 2021 will not be 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f'..chapter-5. 
3 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). 
4 The education evaluation relied upon a combination of the Petitioner's education and work experience in the field of 
marketing to reach its conclusion, and did not conclude that the Petitioner's degree alone was the equivalent of a U.S. 
bachelor's degree. As the regulations require five years of progressive experience to follow "[a] United States 
baccalaureate degree or a foreign equivalent degree," and do not allow for the combination of a lesser degree and work 
experience to serve as the equivalent of a baccalaureate degree, the evaluation does not establish that the Petitioner holds 
the foreign equivalent of a U.S. bachelor's degree. 8 C.F.R. § 204.5(k)(2). Nevertheless, the diploma and transcripts, 
together with information from the American Association of Collegiate Registrars and Admissions Officers (AACRAO) 
Electronic Database for Global Education (EDGE) database regarding the Brazilian education system and credentials, 
www.aacrao.org/edge, demonstrate that the Petitioner holds the foreign equivalent of a bachelor's degree in social 
communications and marketing from an accredited college or university in the United States. 
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considered. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 T&N Dec. 45, 49 (Reg'! Comm'r 
1971). Here, the Petitioner submitted two letters describing his experience as a sales manager. The 
first, from I Istates that he was employed on a full-time basis from 
December l, 2011 to June 16, 2016, or approximately 9 months after his bachelor's degree was 
conferred. The second letter, from I I states that he was employed full-time from July 18, 
2016 to June 6, 2019, or approximately 2 years and 11 months. Together, these letters show that the 
Petitioner has approximately 3 years and 8 months of post-baccalaureate work experience as a sales 
manager. Accordingly, they do not demonstrate the Petitioner's eligibility as a member of the 
professions holding an advanced degree. 
As for the Petitioner's eligibility as an individual of exceptional ability, we note that when the Director 
issued their request for evidence (RFE), they noted deficiencies in the evidence relating only to the 
evidence of his eligibility as an advanced degree professional, and did not seek further evidence 
relating to his exceptional ability. The Director also did not address the Petitioner's eligibility as an 
individual of exceptional ability in their decision. On remand, the Director should evaluate the 
Petitioner's initial claims and evidence regarding the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
If the evidence is insufficient to establish eligibility, the Director should issue an RFE, explaining the 
deficiencies in the evidence and providing the Petitioner an opportunity to respond. 
III. NATIONAL INTEREST WAIVER 
The Petitioner proposes to serve as CEO of a company that will offer retail sales training courses to 
other companies. He submitted a business plan for this company which shows that he intends to hire 
four employees. 
A. Substantial Merit and National Importance 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual 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. Dhanasar, 26 I&N Dec. at 889. 
While the Director determined that the Petitioner's proposed endeavor meets the first prong of the 
Dhanasar analytical framework, we note that they included no analysis explaining this conclusion. In 
fact, the Director made no determination of the endeavor's substantial merit, and while the decision 
lists a single recommendation letter to explain its conclusion that the endeavor is of national 
importance, the decision lacks any explanation of what content in this letter led to that conclusion. Per 
the regulation at 8 C.F.R. § 103.3(a)(l)(i), an officer must articulate the specific reasons for denial 
when issuing a denial decision. Here, the Director's lack of analysis and a conclusion regarding the 
substantial merit of the proposed endeavor, and the lack of analysis regarding its national importance, 
do not show that they properly weighed the evidence and applied the appropriate legal standards. We 
therefore withdraw the Petitioner's conclusion regarding the first prong. 
On remand, the Director should review the record and determine whether it demonstrates that the 
Petitioner's proposed endeavor is of substantial merit, and articulate their reasons for that 
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determination. In addition, the Director should consider whether the record also demonstrates that the 
proposed endeavor is of national importance. In so doing, the Director should keep in mind that we 
look for broader implications of the specific endeavor that the Petitioner proposes to undertake, not 
the potential prospective impact of the entire field or industry in which the Petitioner proposes to 
engage. In addition, as the Petitioner intends to open and operate a business, the Director should 
consider whether the evidence shows that the business has a "significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area." Id. at 890. Further, the Director should consider whether the proposed endeavor, to start and 
manage a company offering sales training services, potentially has national or even global implications 
within its field, or is otherwise of national importance due to its broader implications. When issuing 
their decision, the Director should articulate the reasons why the evidence of record does or does not 
support the endeavor's national importance. 5 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong of the Dhansar analytical framework shifts the focus from the proposed endeavor 
to the individual. To determine whether they are well positioned to advance the proposed endeavor, 
we consider factors including, but not limited to: their 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. Id. at 890. 
Here, the Director concluded that the Petitioner was not well positioned to advance his proposed 
endeavor. But their analysis included factual errors and instances where the incorrect legal standards 
and requirements were applied. For example, the Director determined that the reference letters in the 
record show that the Petitioner is a skilled salesman, but did not show that he "has influenced the field 
to the level of major significance." The phrase "contributions of major significance" is also later used 
in the Director's second prong analysis. 6 On remand, when evaluating the Petitioner's work 
experience in his field as one of many factors to be considered under the second prong of the Dhanasar 
analytical framework, the Director should consider whether that experience shows a "record of 
success" in the Petitioner's previous sales and entrepreneurial experience. 
In addition, the decision makes references to the Petitioner's "findings," and whether the "information 
technology community" is applying those findings. As the Petitioner is not a researcher and has not 
worked in the field of information technology, on remand the Director should focus on whether the 
Petitioner is well positioned to advance his proposed endeavor as an entrepreneur and retail sales 
trainer. 
5 We note that the decision includes analysis when evaluating evidence submitted in support of the second prong of the 
Dhanasar analytical framework that would more appropriately be considered under the first prong. For example. the 
Director's comparison of the Petitioner's proposed endeavor to that of Dr. Dhanasar's proposed teaching endeavors is 
more suited to the analysis of whether that proposed endeavor is of national importance. 
6 This phrase is used at 8 C.F.R. § 204.5(h)(3)(v) as part of one of the evidentiaiy criteria relating to a different 
classification, individuals of extraordinaiy ability, and is therefore inapplicable to the instant petition. 
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C. Whether on Balance a Waiver is Beneficial 
The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
On remand, the Director should consider and evaluate the Petitioner's claims regarding this prong, 
including those made on appeal, to determine whether, on balance, a waiver of the job offer 
requirement, and thus of a labor certification, would be in the U.S. national interest. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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