dismissed EB-2 NIW Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 19, 2023 In Re: 29137167 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a commercial development specialist in the real estate development field, seeks 
classification as a member of the professions holding an advanced degree or of exceptional ability, 
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 employment based 
second preference (EB-2) 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. See 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 Director of the Texas Service Center denied the petition, concluding the record did not establish 
that the Petitioner qualified for classification as an individual of exceptional ability and a discretionary 
waiver of the job offer requirement, and thus a labor certification, was not required upon application 
of the analytical framework we first explicated in Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). 
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 l&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, but only if a petitioner categorically 
establishes eligibility in the EB-2 classification. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she is 
being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself: establish eligibility for this classification. We 
will then conduct a final merits determination to decide 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. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. 
Whilst 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 of 
Dhanasar, see supra. Dhanasar states that USCIS may as a matter of discretion grant a national interest 
waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-2 category 
if they demonstrate that (1) the noncitizen' s proposed endeavor has both substantial merit and national 
importance, (2) the noncitizen is well positioned to advance the proposed endeavor, and (3) that on 
balance it would be beneficial to the United States to waive the requirements of a job offer and thus of a 
labor certification. 
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II. ANALYSIS 
The Petitioner is a commercial development specialist in the real estate development field seeking to 
demonstrate eligibility in the EB-2 classification based on their exceptional ability. A Petitioner must 
demonstrate expertise significantly above that ordinarily encountered to show that they are of exceptional 
ability. 
We agree with the Director's ultimate decision that the Petitioner is not of exceptional ability and therefore 
categorically ineligible for the EB-2 classification. The Director concluded that the Petitioner met one of 
the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii). Specifically, the Director concluded that the 
Petitioner demonstrated they met the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(B), (C), and (E) but, 
upon final examination of the record in totality, did not demonstrate a degree of expertise significantly 
above that ordinarily encountered in their field to merit a determination of exceptional ability. 1 Upon de 
novo review, we conclude that the Petitioner has not demonstrated that they met at least three of the six 
criteria contained at 8 C.F.R. § 204.5(k)(3)(ii) for the reasons set forth below. 2 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner contended that they have commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. In support, they submitted proof of their foreign salary as a 
real estate sales agent, invoices for their services, Canadian government salary data, and a table 
showing salary comparisons for the period 2015 to 2019. But the record does not reflect the salary or 
remuneration expected for individuals of exceptional ability performing duties comparable to those 
the Petitioner intends to undertake as a commercial development specialist. There is no evidence in 
the record which would permit us to evaluate the duties a commercial development specialist of 
exceptional ability would perform for the salary and their remuneration as a point of comparison. The 
record does not reflect the salary or remuneration expected for individuals of exceptional ability 
performing duties comparable to those the Petitioner intends to undertake as a commercial 
development specialist. For example, the letter the Petitioner submitted from their current employer 
containing a list of their gross commission income since 2015. But this letter does not adequately 
explain why the Petitioner's gross commissions are reflective of a professional with ability considered 
significantly above that ordinarily encountered such that it is exceptional. The salary data from the 
Canadian government applies to real estate sales representatives and salespeople, not commercial 
development specialists. But even if the data did apply to commercial development specialists, we 
would still conclude it did not support a conclusion that the Petitioner's salary demonstrated 
exceptional ability because it is not clear in the record what data the Canadian government evaluated 
to establish its "low," "median," and "high" level salaries and whether that data set contained a 
component from individuals with exceptional ability. Put another way. the record does not support 
the Petitioner's assertion that the "high" salary listed on the chart relates to individuals with ability 
considered significantly above that ordinarily encountered such that it is exceptional. Similarly, the 
1 The Petitioner did not submit evidence of an official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of learning relating to the area of 
exceptional ability to meet the criteria contained at 8 C.F.R. § 204.5(k)(3)(ii)(A). 
2 We agree with the Director and conclude the Petitioner has demonstrated eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(B) 
and (C). 
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table submitted by the Petition in response to the Director's RFE does not illuminate how the 
Petitioner's salary is indicative of their exceptional ability because it does not demonstrate how the 
Petitioner's gross commissions are reflective of exceptional performance. In other words, the record 
does not provide a context to judge whether the Petitioner's gross commissions demonstrate 
exceptional ability significantly above that ordinarily encountered. In sum, whilst we recognize the 
Petitioner's salary is based on his sales in a traditional commission model, we cannot determine based 
on the evidence in the record that the commissions the Petitioner commanded were significantly 
greater than those ordinarily earned by individuals similarly situated to the Petitioner such that it is 
evidence of the Petitioner's exceptional ability. So we agree with the Director that the Petitioner has 
not met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) because we cannot evaluate from information in 
the record whether the Petitioner's salary or remuneration demonstrated their exceptional ability. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
We disagree with the Director that the Petitioner met this criterion and hereby withdraw it. The 
Petitioner's membership in the Toronto Real Estate Board, the Ontario Real Estate Association, and 
the Canadian Real Estate Association is not sufficient evidence of membership in a professional 
association. These organizations are not professional associations. The occupation of commercial 
development specialist or realtor does not appear in the list of professions contained at section 
10l(a)(32) of the Act, and it is not included as an occupation that customarily requires a bachelor's or 
higher degree. See Update to Appendix A to the Preamble-Education and Training Categories by 
O*NET-SOC Occupations; Labor Certification for Permanent Employment of Immigrants in the 
United States and Procedures To Establish Job Zone Values When O*NET Job Zone Data Are 
Unavailable, 86 Fed. Reg. 63070 (Nov. 15, 2021). Moreover, the record does not contain evidence 
documenting the criteria for membership in the associations listed by the Petitioner. The Petitioner 
submitted the 'Toronto Real Estate Board's Multiple Listing Service (MLS) Rules and Policies" but 
the document did not specify if a bachelor's degree is a minimum requirement for membership as a 
professional in the association. Similarly, the copy of the "The Realtor Code" issued by the Canadian 
Real Estate Association submitted by the Petitioner simply advanced a code of professional 
responsibility and ethics for realtors and does not describe the requirements for membership in the 
association to evaluate whether the requirements indicate the association is a collection of 
professionals. And the copy of the Ontario Real Estate and Business Brokers Act of 2020 describes 
the framework for regulation of real estate and business brokers in the province but does not contain 
any criteria for us to evaluate whether the occupation customarily requires a bachelor's or higher 
degree. Consequently, an association of realtors, real estate sales professionals, or commercial 
development specialists is not a professional association as that term is contemplated in the 
regulations, and the Petitioner has not met this criterion. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or.field by peers, governmental entities, or professional or business organizations. 8 
C.F.R. § 204.5(k)(3)(ii)(F). 
4 
The Petitioner submitted several support letters/letters of recommendation and award certificates to 
document the recognition of their achievements and significant contributions to their field. 3 
The evidence the Petitioner submits does not meet the standard of proof because it does not satisfy the 
basic standards of the regulations. See Matter of Chawathe, 25 I&N Dec. at 374 n.7. The regulation 
requires evidence of recognition of achievements and significant contributions. When read together 
with the regulatory definition of exceptional ability, the evidence of recognition of achievement or 
significant contributions should show expertise significantly above that ordinarily encountered in the 
field. 
The record does not adequately support the Petitioner's assertion that their "achievements and 
significant contributions" were recognized as significantly above those ordinarily encountered in their 
industry or field. For example, whilst the awards granted to the Petitioner by their employer were 
afforded to five percent of their employer's worldwide sales force, it is not clear in the record how 
recognition in the top give percent ofI I sales force is an achievement of note in the 
field of real estate development. And whilst the record reflects the Petitioner managed a project 
requiring construction of internet browsing rooms to proliferate internet access in underrepresented 
parts of Venezuela in time and under budget, it is not clear in the record how the successful completion 
of this project is an achievement or significant contribution to the field ofreal estate development. For 
example, it is not clear how the expansion of internet access in rural Venezuela related to the 
Petitioner's field or industry. And even if it is the actual construction of the browsing rooms and not 
their intended effect for which the Petitioner asserts they were recognized, it is not clear in the record 
how completion of this task, even if larger and under budget, is an achievement or significant 
contribution in the real estate development field. The record does not highlight any issues or 
circumstances which would assist in consideration of this construction project in a sense which would 
highlights it as an achievement and significant contribution to the field of real estate development. 
The remaining letters the Petitioner submitted reflect that they are a seasoned professional whose 
competence and reliability as an employee is valued and appreciated. But the letters, along with the 
remaining evidence in the record, did not evidence the Petitioner's achievement and significant 
contributions significantly above that ordinarily encountered in the field required to demonstrate the 
Petitioner's exceptional ability. 
III. CONCLUSION 
The Petitioner has not established eligibility in at least three of the six criteria contained at 8 C.F.R. 
§ 204.5(k)(3)(ii). So they cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii). And we need not provide a final merits determination to evaluate whether the Petitioner 
has achieved the required level of expertise required for exceptional ability classification. In addition we 
need not reach a decision on whether, as a matter of discretion, the Petitioner is eligible for or otherwise 
merits a national interest waiver under the Dhanasar analytical framework. Accordingly, we reserve 
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"); see also Matter 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
5 
ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal where an 
applicant is otherwise ineligible). The appeal is dismissed for the above stated reasons, with each 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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