dismissed EB-2 NIW Case: Real Estate And Construction

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 22, 2024 In Re: 30371569 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the real estate and construction business, 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 is eligible for a national interest waiver as a matter of discretion. 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 Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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. 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. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. 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). 
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 ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework 
for adjudicating national interest waiver pet1t10ns. Dhanasar states that U.S. Citizenship and 
Immigration Services (USCIS) may, as matter of discretion, 1 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. ANALYSIS 
A. EB-2 Classification 
The Director did not address the Petitioner's eligibility for the underlying EB-2 visa classification in 
her decision. However, the Director concluded in the request for evidence that the Petitioner qualifies 
for the EB-2 classification based on evidence of his education. The record contains evidence that the 
Petitioner obtained the degree "Bachelor of Business Administration" in 2007 from I I 
I I in Brazil, and an academic evaluation that states that he has 
the foreign equivalent of a bachelor's degree. The Director did not discuss whether the Petitioner 
satisfied the requirement for five years of progressive experience. However, as the record does not 
establish by a preponderance of the evidence that the Petitioner is eligible for a national interest waiver 
as a matter of discretion, we will reserve the issue of the Petitioner's eligibility for the EB-2 
classification. 2 
B. National Interest Waiver 
1. Substantial Merit 
The first prong, 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. The Petitioner 
proposes to direct and oversee operations of a Florida-based construction and real estate company with 
a primary focus on building reasonably priced homes for clients. The business plan states he will 
provide various services related to the construction and real estate industries including new 
construction, renovation and remodeling, real estate sales, property development, construction 
consulting, and property inspection. He discusses and submits documentation about the importance 
of small businesses to the U.S. economy. He submits documentation regarding the Biden 
Administration's plan for protecting the environment and how he will use clean, sustainable resources 
in his company. He also discusses the importance of affordable housing to societal welfare. We 
conclude that the record shows the Petitioner's proposed endeavor has substantial merit. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
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2. National Importance 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar 26 I&N Dec. at 889. The Director analyzed the evidence in the record 
and found that much of the evidence supported the importance of the field of construction and real 
estate, however it, "lacked sufficient evidence to show that the proposed endeavor has prospective 
national importance." On appeal, the Petitioner asserts that the evidence and material facts were not 
fairly and accurately considered and were interpreted incorrectly. In reviewing the entire record, we 
conclude that the record does not establish that the Petitioner's proposed endeavor is of national 
importance. 
The Petitioner asserts on appeal that his proposed endeavor will address the "National Affordable 
Homes Crisis." He explains that there is a deficit of affordable homes and an immediate need to 
produce additional housing. However, the Petitioner has not established that his proposed endeavor 
stands to broadly impact or significantly reduce the crisis. Although his proposed endeavor would 
create additional homes, the record does not specifically show how the Petitioner's construction and 
real estate company will meet his goals of affordable housing or how the Petitioner will address or 
impact these issues in a manner that rises to the level of national importance. 
The Petitioner states that his company will create a significant number of direct and indirect 
employment opportunities in construction and real estate. Dhanasar states that an endeavor can have 
national importance if it may also have "significant potential to employ U.S. workers" or "other 
substantial positive economic effects, particularly in an economically depressed area." Id at 890. The 
Petitioner states on appeal that his proposed endeavor will create 7 direct jobs in the first year of 
operation and 11 jobs by the fifth year. It also states that indirectly, he will be creating 30 to 33 jobs 
per new home being built. However, in the business plan initially submitted with the petition, the 
Petitioner states that he will have 3 employees in the fust year of operation and 8 employees by the 
fifth year and that there will be 44 indirect jobs created based on industry calculations. The record 
contains conflicting information, however, either way, the proposed number of jobs do not rise to the 
level of national importance. Specifically, he has not shown that his company 's future staffing levels, 
direct or indirect, and volume of activity stand to provide substantial economic benefits in Florida or 
the United States. 
The Petitioner also asserts his proposed endeavor will contribute to wealth-building among the local 
residents and attract a diverse workforce for economic growth and sustainability of the region and that 
affordable housing has substantial social benefits. While this is meritorious, and the proposed 
endeavor has the potential to positively impact his clients in these ways, the record does not establish 
that the proposed endeavor will impact the construction and real estate industry in a broader sense, 
impacting more than just the Petitioner's client base. Similarly, in Dhanasar, we determined that the 
petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. 
Finally, the Petitioner claims that his proposed endeavor has the potential to produce "ripple effects" 
as, "[r]eplicating his strategies and methodologies is a likely and intended consequence of the 
endeavor. ... " Dhanasa r states that a proposed endeavor may have national importance because it 
has "national or even global implications within a particular field, such as certain improved 
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manufacturing processes or medical advances" Dhanasar at 889. Here, the record does not quantify 
any "ripple effects" that would be directly attributable to his endeavor or elaborate on how the 
endeavor will cause such effects, beyond operating as a construction and real estate business. The 
business plan discusses his proposed endeavor and that he could create affordable housing using clean, 
sustainable materials, however there is nothing in the record to show this method is specific to the 
Petitioner or that he has a plan to promote his strategies and methodologies in a way that would benefit 
more than his client base. 
The Petitioner asks that we address the evidence that discusses the current administration's position 
on the importance of small businesses and affordable housing. While we acknowledge the importance 
of the industry the Petitioner proposes to work in, 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 specific endeavor that the foreign national proposes to undertake." Id. The record 
contains industry articles and reports of the importance of the small business and affordable housing 
industry. Here, the Petitioner improperly relies upon the importance of the industry to establish the 
national importance of his proposed endeavor. Although this evidence provides good background 
information on the industry itself, without sufficient documentary evidence of the specific proposed 
endeavor's broader impact on the industry, the Petitioner's proposed endeavor does not meet the 
"national importance" element of the first prong of the Dhanasar framework. 
In addition, the Petitioner asks that we address the evidence submitted that shows the Petitioner's 
progress towards his endeavor. This evidence has been reviewed and is more appropriate for prong 
two analysis, whether the Petitioner is well positioned to advance the proposed endeavor, but does not 
demonstrate his proposed endeavor's national importance. While we do not discuss each piece of 
evidence individually, we have reviewed and considered the record in its entirety. As the Petitioner's 
proposed work does not meet the first prong of the Dhanasar framework, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Because the identified reasons for dismissal are 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve remaining arguments 
concerning eligibility under the Dhanasar framework. See Bagamasbad, 429 U.S. at 25; see also 
Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude by a preponderance of the evidence that the Petitioner has not established that he 
is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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