Date of Decision: November 20, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Marketing and Business Management
Petitioner Information
Profession: Entrepreneurial Marketing Director
Field: Marketing and Business Management
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Motion to Reopen: Dismissed
Motion to Reconsider: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- None: The Petitioner did not provide sufficient evidence to meet the required criteria for the EB-2 classification as either an individual with an advanced degree or as an individual of exceptional ability.
Criteria Not Met:
- National Importance: The Petitioner did not establish that his proposed endeavor—initially described as providing marketing services to property management firms and later transformed into an entrepreneurial business selling lubricants—has national importance. The shift in the nature of the proposed endeavor was found to be a material alteration that is not permissible under USCIS regulations.
Key Points from the Decision
Proposed Endeavor:
The Petitioner initially proposed to work as a marketing director providing services to property management firms in the U.S. However, in response to a request for evidence (RFE), the Petitioner changed the proposed endeavor to involve running a business that resells lubricating products for vehicles. This significant change in the nature of the proposed endeavor was not permitted, as it represented a material alteration of the petition after filing.
Substantial Merit and National Importance:
The Director and the Administrative Appeals Office (AAO) dismissed the appeal and subsequent motions because the Petitioner did not present a consistent, well-defined proposed endeavor. The material change from a marketing director to an entrepreneur selling lubricants prevented a thorough analysis of the endeavor’s substantial merit and national importance. The Petitioner failed to demonstrate that either proposed endeavor would have a significant impact on the U.S. economy or any specific industry on a national scale.
Final Merits Determination:
The Petitioner did not establish eligibility for the EB-2 classification as an advanced degree professional or an individual of exceptional ability. The Petitioner’s submissions, including letters from previous employers and academic records, were insufficient to meet the evidentiary standards required under the applicable regulations.
On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process:
This prong was not analyzed further due to the Petitioner’s failure to satisfy the first two prongs regarding national importance and eligibility under the EB-2 classification.
Supporting Documentation
Letters from Employers and Educational Records:
The Petitioner submitted letters from former employers and educational records to support the claim of having an advanced degree and experience in marketing. However, the documents provided were found to be insufficient in proving the Petitioner’s qualifications. The educational transcripts were incomplete, and the work experience letters did not clearly establish the Petitioner’s qualifications as an advanced degree professional or an individual of exceptional ability.
Business Plan:
The Petitioner provided a business plan for the entrepreneurial endeavor involving the resale of lubricants. This plan was found to be inconsistent with the original proposed endeavor of providing marketing services, leading to the dismissal of the appeal.
Conclusion
Final Determination: The appeal and the motions to reopen and reconsider were dismissed because the Petitioner did not establish that their proposed endeavor as an entrepreneurial marketing director or as a business owner in the lubricant resale industry would have national importance or broader implications for the U.S. economy. The evidence provided was insufficient to demonstrate eligibility for the EB-2 classification and to justify waiving the job offer requirement.
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