dismissed EB-2 NIW Case: Real Estate

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26953593 Date: MAY 16, 2023 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a real estate developer, seeks classification as a member of the professions holding an 
advanced degree and as an individual of exceptional ability in the sciences, arts or business. See 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the 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 dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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. 
Once a petitioner demonstrates EB-2 eligibility, 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 USCIS may, as matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 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). 
• 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. ANALYSIS 
The Petitioner claims eligibility for both types of EB-2 classification, as a member of the professions 
with an advanced degree and as an individual of exceptional ability. The Director's decision focuses 
entirely on the issue of the national interest waiver, and includes no dete1mination as to whether the 
Petitioner qualifies for EB-2 classification. It is not readily apparent that the Petitioner has met the 
requirements for either classification, 2 but we will not make a full initial determination on the 
Petitioner's EB-2 eligibility because the national interest waiver issue, by itself, is sufficient to 
determine the outcome of the appeal. 
The Petitioner is an entrepreneur who has worked for various companies in Brazil. He claims to have 
co-founded a motorcycle dealership in 2006, when he was 17 years old. Since 2010, the 
Petitioner has held management or board positions with companies engaged in real estate and 
electronics. He earned a bachelor oflaw degree in 2012. The Petitioner entered the United States in 
March 2021 as a B-2 nonimmigrant visitor, and he filed the present petition in August 2021. 
The Petitioner's proposed endeavor is to serve as the general manager of a real estate development 
company in Florida, which he established in 2021. A business plan in the record indicates that 
the new company "will construct houses, primarily in thel lareas," and "will also 
invest in rental properties." Following a request for evidence (RFE), the Petitioner submitted a revised 
version of that plan. 
The first prong of the Dhanasar national interest test, substantial merit and national impmiance, 
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. Matter ofDhanasar, 26 I&N Dec. at 889. Below, we will 
focus on the issue of national impmiance. 
The business plan indicates that the Petitioner's proposed endeavor will have "National-level Impact" 
"by generating direct and indirect jobs, purchasing product/services provided by suppliers, paying 
taxes, and transferring [the Petitioner's] knowledge to individuals in the U.S.," while also contributing 
to housing in Florida. 
An 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. Matter o/Dhanasar, 26 I&N Dec. at 890. The Petitioner's business plan 
projects "a total of six employees" after five years. The Petitioner did not establish that this amount 
of employment, and the resulting tax revenue, is substantial enough to have national importance. The 
2 Those requirements can be found at 8 C.F.R. § 204.5(k)(3). 
2 
initial business plan indicated that "national job multipliers published by the Economy Policy 
Institute" (EPI) predict that the Petitioner's creation of six direct jobs would produce about 53 indirect 
jobs. The revised business plan also cited Regional Input-Output Modeling System (RIMS II) 
multipliers for a real estate business in Florida project "84 jobs in Year 5." The Petitioner did not 
address or explain the significant discrepancy between the EPI and RIMS II figures, or show that these 
figures represent substantial job creation. The Petitioner himself would not be creating these jobs. 
In response to the RFE, the Petitioner stated that his work will benefit the United States in four ways: 
by building low-cost housing to reduce homelessness; by catering to first-time homebuyers; by serving 
as a consultant; and by purchasing and reselling abandoned properties. The Petitioner provided 
statistics about some of these issues but did not show that his proposed endeavor would have a 
significant impact on any of them. 
The Petitioner stated that his "specific services ... deeply differ from the ones generally provided by 
ordinary Entrepreneurs." The Petitioner did not explain how his work, and the benefits arising from 
that work, distinguish him from other real estate developers, or how claimed differences between 
himself and others give his work national importance. 
The Petitioner submitted an "analysis and advisory evaluation" from a university faculty member, who 
provided general information about the real estate industry (sometimes in language very similar to the 
Petitioner's business plan), described the Petitioner's background, and concluded that the Petitioner is 
eligible for the national interest waiver. USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony, but USCIS is ultimately responsible for making the final 
determination regarding an individual's eligibility for the benefit sought. See Matter of Caron 
International, 19 I&N Dec. 791, 795 (Comm'r 1988). 
The Petitioner stated that his "work has palpable broader implications, as its results are widely 
disseminated to other professionals in the business and construction markets." The Petitioner does not 
elaborate as to how his work is disseminated. His revised business plan indicates he plans to 
outperform, rather than influence, rival companies, because his company's "product quality, superior 
customer service, and competitive prices, combined with [ the Petitioner's] expertise and managerial 
skills, will elevate the Company above other industry operators." 3 
The Petitioner cited statistics about a shortage of construction workers, but the Petitioner did not 
explain how his proposed endeavor would increase the number of such workers. The Petitioner's 
business plan does not project that his company will directly employ any construction workers, and 
he did not explain how his proposed endeavor would cause more people to enter that occupation. 
The Director denied the petition, acknowledging the overall importance of real estate development 
and housing, but concluding that "the petitioner has not shown his proposed endeavor ... stands to 
sufficiently extend beyond an organization and its clients to impact the industry or field more broadly." 
3 This stated intent to "elevate the [Petitioner's] Company above other industry operators" appears to contradict the 
Petitioner's earlier statement that he "is not competing with other U.S. Entrepreneurs." 
3 
On appeal, the Petitioner restates the proposed endeavor and maintains that it meets all the Dhanasar 
prongs. The substantive arguments in the appellate briefrepeat the Petitioner's response to the RFE. 4 
The Petitioner's involvement in an industry with collective national importance does not demonstrate 
that his proposed endeavor, specifically, has or will have national importance. The Petitioner does not 
sufficiently distinguish his intended business from those of others in the field. The Petitioner has not 
established that the projected economic benefits from his proposed endeavor reach the required level 
of national impo1iance. 
In light of the above conclusions, the Petitioner has not met his burden ofproof to show that he satisfies 
the first prong of the Dhanasar national interest test. Detailed discussion of the remaining prongs 
cannot change the outcome of this appeal. Therefore, we reserve argument on the other prongs. 5 
III. CONCLUSION 
The Petitioner has not established the national importance of the proposed endeavor. Therefore, the 
Petitioner has not shown eligibility for the national interest waiver, and we will dismiss the appeal as 
a matter of discretion. 
ORDER: The appeal is dismissed. 
4 Much of the language in the brief has been copied directly from the RFE response. For example, the brief refers to "the 
newly enclosed Business Plan" and "the Petitioner's Business Plan enclosed herein." There is no business plan enclosed 
with the appeal, but there was a revised business plan included in the Petitioner's response to the RFE. Also, the 
Petitioner's RFE response statement included a paragraph about public housing, printed in gray ink instead of black. That 
paragraph is also in gray in the appellate brief. The brief also includes several superscript numerals which, in the RFE 
response, corresponded to footnoted references that do not appear in the appellate brief. 
5 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 
n.7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
4