dismissed EB-2 NIW Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2024 In Re: 29337638 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a real estate developer and entrepreneur, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability, 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). 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 underlying visa classification or merits a discretionary 
waiver of the job offer requirement "in the national interest." 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, under section 203(b )(2)(B)(i) of the Act. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. See generally , 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
We will then conduct a final merits determination to determine whether the evidence in its totality 
shows that they are recognized as having a degree of expertise significantly above that ordinarily 
encountered in the field. 
Once a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
establish eligibility for 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 3, 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 
The Petitioner's pjoposld endeavor is to use his U.S. based company,
I I formed i 2018, to develop affordable real estate for low in~c-om_e_A_m_e_n__c_a_n_s_-H_i_s-ro-l~e 
as partner and general and operations manager will be to plan, execute, supervise, and coordinate 
construction projects in the affordable housing sector. He endeavors to use hislprofesyonal experience 
in construction and home building to purchase lots (he provides evidence that has purchased a 
lot inl IFlorida) and hire qualified professionals to build single-family homes aimed at 
meeting the needs of the United States' low-income population. He and his wife co-ownl land 
they plan to grow their company and reinvest any profits in the first five years of operation. Initially, 
he describes thatl Iwill be located in a Florida HUB Zone and will eventually expand into five 
counties in Florida and then into New York and California. 
The Director determined the Petitioner met only two of the required three criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). On appeal, the Petitioner asserts he meets two additional eligibility criteria. 
Upon de novo review, for the following reasons, we conclude the record does not establish that the 
Petitioner meets any of the regulatory criteria. 4 
Evidence in the form of letter(s) from current or former employer(s) showing that 
the [noncitizen] has at least ten years offit/I-time experience in the occupation 
The Petitioner asserts that he has over 20 years of experience running his own real estate business 
since 2001. To support his assertion, the Petitioner initially provided several letters. One is an 
3 See Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest waiver 
to be discretiona1y in nature). 
4 Although we are withdrawing the Director's determination that he meets two criteria, a remand is not necessary because 
as the remainder of the decision indicates, the Petitioner has not established he meets any additional criterion. Therefore, 
he cannot meet the numerical threshold of three criteria to demonstrate he is an entrepreneur in the home real estate 
development business of exceptional ability. See, e.g., Clifton v. Holder, 598 F.3d 486,494 (8th Cir. 2010) (quoting Berte 
v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005)); see also Lee v. Holder, 765 F.3d 851, 855 (8th Cir. 2014); Vargas v. 
Holder, 567 F.3d 387, 391 (8th Cir. 2009) (generally standing for the proposition that remands are not needed if the issue 
is not likely to change the result). 
2 
unsigned letter onl Iletterhead purporting to be fro m~--------~ a certified 
public accountant (CPA), stating the Petitioner "has been working in the purchase and development 
of real estate since October 2001." It also states that he worked in "developments as arrivatel 
individual until he became the partner of [his company]." Another is an August 2021 letter on 
letterhead, from~------~ which states the Petitioner is a partner and manager at 
performing the role of "New Projects Director," and details his duties. In addition to these letters, the 
Petitioner included several documents related to his Brazilian-based company,~--------' 
The first, titled "Particular Instrument for the Amendment ~--------------~ of the Contract of a Limited Liability Company," is an agreement between himself: his wife, and two 
other partners, signed on December 19, 2020. The other, titled "Consolidation of the Articles of 
Incorporation of a Limited Liability Company" sets up the company. In addition to these documents, 
he included public records of real estate projects he carried out as an independent contractor since 
2001. 
Following the Director's re uest for additional evidence (RFE), the Petitioner provided two additional 
letters. One is on letterhead, dated March 28, 2023 and signed by 
The letter explains that in 2018,LJ became a 
partner of the Petitioner's Brazilian-based company I I shortly after it was formed, and before 
that, since July 2012, I I founding partners were investing in the Petitioner's construction 
projects, which he was carrying out as an independent contractor. The letter goes on to describe the 
eight projects that the Petitioner has developed from 2012 to 2018 as an individual builder and from 
2018, as founding partner of his company, in whichc=Jand its partners were investors. The second 
letter, from I I on the Petitioner's Brazil-based company's letterhead, states that he 
has been the Petitioner's partner since July 2018 and describes their roles as partners and four 
development projects undertaken by the company since 2019. 
Although the Director determined that these letters were sufficient to establish this criterion, we will 
withdraw the Director's finding for the following reasons. While we do not doubt that the Petitioner 
has engaged in varying capacities in home building projects for some time, the evidence does not 
contain sufficient specificity to determine whether he meets the plain language of this criterion. For 
example, while a number of the letters reference the construction projects he worked on from 2001 to 
2018, they do not provide such information as his title, duties, hours worked per week, or exact length 
of the projects. In addition, the record contains evidence that the Petitioner has been engaged in work 
as a pilot and/or aviation trainer, 5 but the letters do not address the time spent on that endeavor. 
Without more, we cannot conclude that the Petitioner has established at least ten years of foll-time 
5 We note that in addition to several documents in the record referencing the Petitioner's occupation as a pilot government 
records indicate that when he applied for a nonimmigrant visa in April 2013, the Petitioner described himself as a self­
employed "Home Builder and Pilot." 
3 
experience in the occupation. As such, upon de novo review, we are withdrawing the Director's 
determination that he meets this criterion. 
Evidence that the [noncitizen} has commanded a salary, or other renumeration for 
services, which demonstrates exceptional ability 
The Director determined that the Petitioner's initial evidence was sufficient to establish this criterion. 
The Petitioner provided a letter from his CPA listing his 2018, 2019, and 2020 earnings and 
information from Glassdoor showing the monthly salary for a general manager in Brazil in 2022. 6 
To meet this criterion, the Petitioner must establish that he has commanded a salary or other 
remuneration for services that is indicative of his or her claimed exceptional ability relative to others 
working in the field. See generally, 6 USCIS Policy Manual F.5(8)(2), https://www.uscis.gov/policy­
manual. Here, the letter provides the Petitioner's total earnings without information regarding its 
source(s) 7 or any other relevant breakdown, whereas the information from Glassdoor addresses a 
monthly salary. Further, during the period from 2018 to 2020, the Petitioner has been the owner of 
his real estate development business and, as such, he has not established that salary information for a 
general manager would be a proper comparison. 
As such, upon de novo review, we are withdrawing the Director's determination that he meets this 
criterion. 
Evidence ofmembership in professional associations 
As explained by the Director, the information submitted regarding the 
I I did not establish that it is a professional~a_s_s-oc_i_a-ti_o_n_c_o_n_s_is-t-en_t_w-it~h 
the regulation at 8 C.F.R. § 204.5(k)(2). More importantly, the evidence shows he joined thel I 
Florida Chapter on Thursday February 23, 2023, after the Director issued a request for evidence (RFE) 
explaining that the Petitioner did not provide any evidence in support of this criterion. The Petitioner 
must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 
45, 49 (Comm'r 1971). Further, the purpose of an RFE is to elicit information that clarifies whether 
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 
§§ 103.2(b)(l), 103.2(b)(8), 103.2(b)(12). A petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to USCIS requirements. See Matter ofIzwnmi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). As such, the Petitioner has not established that he meets this 
criterion. 
6 The Petitioner does not explain why he provided 2022 information from Glassdoor and income information from 2018-
2020. 
7 We note, for example, evidence in the record indicates that the Petitioner may work as a pilot. 
4 
Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations 
On appeal, the Petitioner asserts the Director erred when she determined that his evidence was 
insufficient to demonstrate he meets this criterion. He highlights two letters he claims attest to his 
significant contributions and recognition for achievements from peers in his industry. The first, by 
the architect! Iexplains that between March 2001 and April 2018, he 
worked with the Petitioner on 16 projects, and describes how the Petitioner's "performance as an 
entrepreneur and identifier of market opportunities has directly impacted the organic and rapid growth 
of his company." He also explains how the Petitioner's endeavor can be replicated in the United 
States, and will increase the U.S.'s competitiveness and improve public services. I I provides 
information about the Petitioner's projects, including their locations, and state of completion, and 
distinguishes those projects completed by the Petitioner as an independent contractor before 2018 and 
those since he started his company in 2018. The second letter, by.__ ______ ..,.. explains that 
he has worked in the real estate and civil construction industry since 2008 and opines on "the 
importance of a professional like [ the Petitioner] to the construction market [which] can be evidenced 
Iby thl more than 20 projects implemented throughout his career, with a focus on low income areas." 
also highlights the Petitioner's professional strengths including "identifying market niches, 
defining construction models, and the type of project to be developed" as the main skills needed by an 
entrepreneur in the construction industry, which he asserts is especially important in a country like 
Brazil, because of the great social and economic diversity combined with its complex tax burden, 
which directly impacts construction costs. D further opines on how the labor intensive civil 
construction industry can greatly contribute to job and income creation, as well as social development, 
in the United States. 
Other letters also generally describe how the Petitioner's expertise in construction management 
resulted in profits and explain that his skills led the writers to repeatedly invest in his endeavors. For 
example,! Ia neuroradiologist who met the Petitioner during a private pilot course where 
the Petitioner was an "excellent flight instructor," explains how he invested in two of the Petitioner's 
~'and that he carried out his work with excellence and made a nice profit. Similarly,! I 
L___J an air traffic controller who met the Petitioner in 1992 during a pilot course, describes 
investing in two of the Petitioner's projects, in 2012 and 2014, and making a profit from these 
endeavors. He also explains how he observed the Petitioner's "knowledge more closely" and that he 
"could see the impact in the neighborhoods in which he operates and in the surrounding areas." 
The remaining letters also generally highlight the Petitioner's professional endeavors. For example, a 
letter from.________ _, the commercial director of his own landscape architecture business, 
explains that he founded his company in 1982, and as commercial director, he observed the Petitioner's 
expertise during his work on the [ Iproject. He describes the 
Petitioner's attentiveness and assertiveness and attests to his study of the U.S. civil construction market 
in order to invest in the United States. 
The Petitioner also provides an expert opinion from I I, associate professor of 
innovation and entrepreneurship from thd , Istates the Petitioner 
has "a record of consistent success in the construction and residential management industry." We note 
5 
that his opinion is based on the above-described letters and the Petitioner's resume, rather than 
personal knowledge of his work. 
Finally, the PetToner pf°vided an article~-----------------~ published 
in the magazine The article generally describes his trajectory from airline pilot to the purchase 
of his first property to finally opening his construction company. The article also discusses the growth 
of his company and his approach to investing. 
We agree with the Director that the evidence is insufficient to meet this criterion because, while 
complimentary, the letters do not sufficiently explain or document the Petitioner's recognition for 
achievements and significant contributions to his industry or.field as required by the plain language 
of the regulation ( emphasis added). 
The Petitioner has not provided sufficient evidence to meet any of the criteria found at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). As the Petitioner has not established his qualification for the EB-2 
classification as an individual of exceptional ability in the sciences, arts, or business, he is therefore 
ineligible for a national interest waiver. Although the Petitioner asserts on appeal that he meets all 
three of the prongs under the Dhanasar analytical framework, we reserve our opinion regarding these 
issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"); Matter ofL-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). 
III. CONCLUSION 
The record does not establish that the Petitioner qualifies for second-preference classification as an 
individual of exceptional ability. Therefore, we conclude that the Petitioner has not established 
eligibility for the immigration benefit sought, and his appeal will be dismissed. 
ORDER: The appeal is dismissed. 
6