The Petitioner, a marketing management specialist, 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 DirectoroftheNebraskaService Centerdeniedthe petition, concludingthatthe Petitionerqualified for classification as a member ofthe professions holding an advanced degree, but 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 she 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; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). 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. - p. 2 (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 the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney 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.
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 o f 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 beneficialtotheUnitedStates to waivetherequirementsofajobofferandthusofalaborcertification.
The first prong, substantial merit and national impmiance, 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 importance, 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. 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 Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSD01).
SeealsoPoursinav. USCIS,936F.3d868,2019WL4051593(9thCir.2019)(findingUSCIS'decisiontograntordeny a national interest waiver to be discretionary in nature).
Dhanasar, 26 I&N Dec. 884 (AAO 2016). eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter Dhanasarstates that after a petitioner has established p. 3 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 In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign national proposes to undertake." Id. at 889. 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: Marketing Management Specialist Part 6 - Basic Infmmation About the Proposed Employment Section 1. Job Title: Marketing Management Specialist Section 3. Nontechnical Description of Job: Evaluate products/services and develop appropriate strategies. The Petitioner also submitted an email frotrj Ioffering her the position of marketing management specialist with a start date of December 15, 2019.
The Director issued a request for evidence (RFE) which clearly explained "that an occupation (marketing managementspecialist)andthegeneralworkperfmmedinthatoccupationdonotconstituteanendeavor."
In response, the Petitioner provided a business plan for her own social media marketing company, indicating that she would be the chief executive officer, but failed to provide any explanation for the As discussed by the Director, the Petitioner must establish eligibility at the time of filing. 8 C.F.R § 103.2(b)(12);MatterofKatigbak, 14I&NDec. 45, 49(Comm'r 1971). Further, the purpose ofanRFE is to elicit information that clarifies whether eligibility for the benefit sought has been established, as of thetimethepetitionisfiled. See8 C.F.R. §§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(l2). Apetitionermay not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, material changes are made to the initial request for approval, a petitionermust file a new petition rather than seek approval of a petition that is not supported by the facts in the record. https://www.onetonline.org/link/summaiy/l l-2021.00 (last accessed Oct. 12, 2021). 5 We note that the Petitioner also failed to address the change on appeal. to waive the requirements of a job offer and thus of a labor ce1iification.
Analysis
Section 2. SOC Code: 11-2021 change from a marketing management specialist to that ofan entrepreneur and chiefexecutive officer. See Dhanasar, 26 I&NDec. at 888-91, for elaboration onthesethreeprongs.
This standard occupational classification (SOC) code 11-2021 corresponds to the occupation o fmarketing managers. See p. 4 The information provided by the Petitioner in the response to the Director's RFE did not clarify or provide more specificity to the proposed endeavor as initially described, but rather changed its focus. Accordingly, the RFE response presented a new set of facts regarding the proposed endeavor, which is material to eligibility foranationalinterestwaiver. See Matter o fMichelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90.
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. Because the Petitioner has not provided consistent information regarding her proposed endeavor, we cannot conclude that she meets either the first or second prong, or that she has established eligibility for a national interest waiver.
Conclusion
The appeal will be dismissed for the above stated reasons.
ORDER: The appeal is dismissed.