The Petitioner, a marketing manager, seeks second preference immigrant classification as a member of the professions holding an advanced degree and as an individual ofexceptional 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 Texas 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.
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 dismiss the appeal.
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 ofthe United States, and whose services in 1he p. 2 sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i) Nationalinterestwaiver. ... [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.
Furthermore, while neither the statute nor the pe1iinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter o f 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 , 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 foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national impmiance, we consider its potential prospective impact.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming 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 offerorforthepetitionerto 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 warrantforgoing the labor ce1iification process. In each case, the factor(s) Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionary in nature). p. 3 considered must, taken together, indicate that on balance, it would be beneficial to the United States The Director concluded that the Petitioner qualifies as a member of the professions holding an The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar,26I&NDec.at889. ThePetitionerinitiallyprovidedastatementindicating:
I intend to continue using my expertise and knowledge in the field of Marketing and Business Administration. I have extensive experience working as a Marketing Manager within the Brazilian business environment for the past 30 years.
My career plan in the United States is to continue working with American companies that require my specialized knowledge, years ofexperience, and significant expertise. I intend to continue designing marketing strategies, maintaining positive working relationships with peers to facilitate company growth, and identifying viable opportunities for business development through extensive research. I can provide a company's marketing efforts by leveraging the wealth of consumer data from various sources and target messaging accordingly. In addition, by restructuring internal teams, adopting new technology, expanding market opportunities, focusing on the new customerjourney, and allowing for a deeper understanding of marketing touchpoints, I will ultimately create a greater competitive advantage.
In response to the Director's request for evidence, the Petitioner submitted a revised statement indicating to waive the requirements of a job offer and thus of a labor certification.
Analysis
Accordingly, the issue to be determined on appeal is whether the Petitioner has advanced degree. 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 eligibility under the first prong of the Dhanasar analytical framework.
I intend to continue to develop my career in the field of business in the United States, promoting the improvement of marketing, sales, branding, business management, and consequently stimulate the generation of substantial revenue within the U.S. business industry. As such, my proposed endeavor in the United States is to continue working as a marketing director/manager fomenting business and commercial activity domestically and among international markets. I will use my marketing skills to stimulate commercial transactions; to support the improvement of business operations; to promote sales of As the Director concluded thatthePetitionermeets the classificationasa memberoftheprofessions holding an advanced degree,a determinationregardinghisclassificationasanindividualofexceptionalabilityismoot.
SeeDhanasar, 26l&NDec. at 888-91, forelaboration onthesethreeprongs. p. 4 products and services of companies; and to facilitate cross-border transactions involving foreign markets. Myproposedendeavoristo fomentcommercialactivityandthegenerationofsignificant revenue in the U.S. economy. My proposed professional activities will involve the continue management of my company I-and the assistance to other U.S. companies that intend to expand their business abroad, as to foreign companies that intend to introduce their business and operations in the U.S. market.
The Petitioner then discussed his business intentions relating tol 1,1 I and I. InresponsetotheDirector'snoticeofintenttodeny,thePetitionerreferencedtheCOVID- 19 pandemic and claimed that he "could create, suggest, and enact immediate change to a company's business model to hedge short-term losses and foster long-term profitability in the current business environment." On appeal, the Petitioner maintains that his proposed endeavor as a marketing manager can potentially "influence the migration offoreign companies and investments into the U.S., [] create direct and alternate revenue streams for domestic companies, [ ] help preserve and create jobs for Americans, [] expand the reach ofsmall businesses to a national scale, and is [ ] a critical profession for the immediate rebound of the U.S. economy in a post-pandemic landscape." The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but not its national importance. For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently shown the national importance aspect o f his proposed endeavor.
In determining national importance, the relevant question is not the importance of the 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. Although he provided evidence relating to the general marketing manager position and its role in the business sector, the Petitioner must demonstrate the national importance of his specific marketing management services rather than the national importance ofmarketing management or the marketing manager position in a companyorthewiderangeoffieldsorindustriesinwhichheintendstowork. InDhanasar,wefurther 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 implications 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.
Throughoutthe record, the Petitioner emphasized his ''expertise andknowledge," ''extensive experience," and "specialized knowledge, years of experience, and significant expertise." The Petitioner's experience and abilities in his field relate to the secondprong ofthe Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the specific endeavor that he proposes to undertake has national importance under Dhanasar' s first prong.
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. On appeal, the Petitioner contends that he "submitted substantial evidence regarding his proposed endeavor as a marketing manager and detailed the steps he would take to help facilitate the transition of foreign businesses into the U.S. market, which would attract opportunities for significant foreign direct investment, expandjob opportunities for U.S. citizens, and help established domestics expand through increased business o letters fro services," andl business to a national level." not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. Here, the Petitioner's statements and business letters do not sufficiently show that his proposed endeavor of serving as a marketing manager stands to sufficiently extend beyond his present or potential employers, to impact the businesses or any other industries or the U.S. economy more broadly at a level commensurate with national importance. The Petitioner did not d e m o n s t r a for instance, how his services with these selective businesses, including his own business o f I lwould translate into a greater effect on the overall economy.
Furthermore, the Petitioner has not established 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.Job creation or economic claims unsupported Although the Petitioner claims that his endeavor "will provide significant economic benefits to the U.S. by creating foreign and alternate domestic revenue streams, increasing employment opportunity for American workers, and protecting American small businesses from capitulating during a post-pandemic U.S. economy," the Petitioner's documentary evidence does not support his assertions. Neither the Petitioner's statements nor the business letters mention any potential job numbers, demonstrate how his proposed endeavor would impact unemployment levels, ordetailanyrevenuebenefitsfornationalorregionalareas. Withoutsufficientinformationorevidence 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 marketing manager position would reach the level of "substantial positive economic effects" contemplatedbyDhanasar. Id. at890. Accordingly,thePetitioner'sproposedendeavordoesnotmeet the first prong of the Dhanasar framework.
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 demonstratedeligibilityforanationalinterestwaiver. Furtheranalysisofhiseligibilityunderthe second 5 On appeal, the Petitioner offers anassessmentfroJ IHowever, we will not consider this evidence forthefirsttimeonappealasitwasnotpresentedbeforetheDirector. SeeMatterofSoriano,19I&NDec.764,766(BIA 1988)(providingthatif "thepetitionerwasputonnoticeoftherequiredevidenceandgivenareasonableopportunityto provide it for the record before the denial, we will not consider evidence submitted on appeal for any purpose" and that "we will adjudicate the appeal based on the record ofproceedings" before the Chief); see also Matter ofObaigbena, 19 T&NDec. 533 (BIA 1988).
SeeINSv. Bagamasbad,429U.S.24,25(1976)(statingthat"courtsandagenciesarenotrequiredtomakefindingson i s s u e s i n t h e d e c i s i o n o f w h i c h i s u n n e c e s s a r y t o t h e r e s u l t s t h e y r e a c h " ) ; s e e a l s o M a t t e r o f L - A - C2 - 6, l & N D e c . 5 1 6 , 5 2 6 n.7(BIA2015) (declining to reach alternative issues on appeal where anapplicantis otherwise ineligible).
01iunities." S ecificall
Iand
, the Petitioner references his personal statements and "who expressed their need to retain [the Petitioner's] "who wish to expand the reach of their domestic In Dhanasar, we determined that the petitioner's teaching activities did _ _ _ _ _ _ and third prongs outlined inDhanasar, therefore, would serve no meaningful purpose.
Conclusion
As the Petitioner has not met the requisite first prong oftheDhanasar analytical framework, we conclude that he has not demonstrated that he is eligible for or otherwise merits a national interest waiver as a matterofdiscretion. Theappealwillbedismissedfortheabovestatedreasons,witheachconsidered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.