dismissed EB-2 NIW Case: Urban Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 25, 2024 In Re: 31478989 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an urban development planner, 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. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, he had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The matter is now before us on appeal pursuant to 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 qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. If a petitioner establishes eligibility for the underlying EB-2 classification, 
they must then demonstrate 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 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; 
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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the remaining issue to be determined on appeal is whether the 
Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, 
would be in the national interest. 
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. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their education, skills, knowledge and record of success in related or similar efforts; a 
model or plan for future activities; any progress towards achieving the proposed endeavor; and the 
interest of potential customers, users, investors, or other relevant entities or individuals. Id. at 890. 
The third prong requires a petitioner to demonstrate 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. In performing 
this analysis, we may evaluate factors such as: whether, in light of the nature of the individual's 
qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer 
or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are 
available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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. 
Id. at 890-91. 
According to the Petitioner's statement of intent, he intends to continue his work in the field of 
regeneration, also known as urban renewal. He refers to his experience in the United Kingdom where 
his work with regeneration projects have included analyzing and researching real estate trends; 
identifying real estate opportunities and challenges for areas that have potential for regeneration, such 
as sites that have been neglected or have difficulty attracting investors; obtaining the necessary licenses 
and permits; and assembling a team of consultants, architects, and lawyers to initiate and advance the 
regeneration projects. The Petitioner indicates that he is "now intent on taking on a different role in 
these regeneration projects" and instead of carrying out the projects himself, he hopes to "work as a 
consultant and provide support to real estate owners and other developers." His goal is to "provide 
consulting services to the real estate market and become actively involved with regenerating American 
sites." He sees "in the United States many opportunities for bringing forward regeneration" due to the 
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acute housing crisis and availability of mill and factory sites that have been abandoned, resulting in a 
loss of employment opportunities. He notes that the "situation in many ways resembles the situation 
in the United Kingdom" and there are many sites in the United States "that could be regenerated in 
order to create economic and cultural opportunities for residents." The Petitioner also submitted letters 
ofrecommendation and industry articles and reports in support of his eligibility. 
The Director determined, in part, that the Petitioner's initial filing did not demonstrate the proposed 
endeavor's national importance or that the Petitioner is well positioned to advance the proposed 
endeavor and issued a request for evidence. In response, the Petitioner submitted additional 
documentation, to include his statement of intent, a consulting firm's report and articles discussing his 
projects in the United Kingdom, letters from a potential client in the United States and three individuals 
familiar with the Petitioner's work, and articles and reports about the U.S. housing crisis and urban 
revitalization efforts. The Petitioner indicated that the record demonstrates he is well positioned to 
advance the proposed endeavor and referred to his lengthy experience in the development industry. 
He noted that he has several urban renewal projects underway in the United Kingdom, he has led urban 
renewal projects which cumulatively provide a "$1.702 billion impact on the national economy of the 
United Kingdom", and his experience and practical knowledge in the real estate acquisition and 
development industry "cannot be replicated by those with less real-world experience." 
In denying the petition, the Director concluded that though the proposed endeavor had substantial 
merit and national importance, the record contained insufficient evidence to demonstrate the Petitioner 
is well positioned to advance the proposed endeavor under Dhanasar's second prong. The Director 
noted that though the Petitioner provided a letter of interest from a prospective employer, the letter 
lacked details that demonstrated a definitive impact on the Petitioner's ability to advance his proposed 
endeavor. On appeal, the Petitioner states that he is providing new facts to be considered as part of 
his eligibility determination and submits additional letters from U.S.-based companies "seeking to 
engage him as an urban renewal expert." He asserts that the new letters, in conjunction with the 
previously submitted evidence, demonstrate he is well positioned to advance the proposed endeavor. 
Upon review, the record supports the Director's determination that the Petitioner did not demonstrate, 
by a preponderance of the evidence, that he meets the second prong of the Dhanasar framework. We 
note the letters submitted on appeal indicate three U.S.-based companies have expressed interest in 
engaging with the Petitioner as an urban renewal consultant. However, the letters are dated in October 
and November 2023, subsequent to the filing date of the instant petition in July 2022. A petitioner 
must establish eligibility for the benefit he is seeking at the time the petition is filed. 8 C.F.R. § 
103.2(b)(1 ). A visa petition may not be approved based on speculation of future eligibility or after a 
petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. at 49. 
Moreover, the submitted letters generally describe interest in working with the Petitioner in the United 
States on urban renewal projects without providing sufficient details, such as information about 
proposed projects, responsibilities, dates, or potential wages. 
The Petitioner further argues that the record as a whole demonstrates his education, skills, knowledge, 
and record of success with urban renewal efforts. He refers to the letters from five industry experts 
who indicate the Petitioner is "widely regarded as a skilled expert in development planning" and urban 
renewal/regeneration. While the submitted recommendation letters refer to the Petitioner's work on 
multiple projects in the United Kingdom, the record does not contain sufficient evidence to show the 
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overall impact of the Petitioner's role. For example, the Petitioner indicated in the initial filing that 
he has "spearheaded six major projects across England" which are "estimated to create 426 permanent 
construction jobs" and "1,400 retail and commercial jobs" and "inject the value of$98,038,027 United 
States dollars annually into the U.K. economy." As evidence of these estimates, the Petitioner 
provided a report from a consulting firm. However, the report indicates that the majority of the 
projects are still in the development stages; the job creation and financial value estimates are based on 
projections over 25 years; and the basis of the estimates are not fully explained or supported in the 
record. We also noted in Dhanasar that one of the factors considered to determine whether a Petitioner 
is well positioned to advance the proposed endeavor is evidence of a model or plan for future activities. 
Though the Petitioner indicated in his initial filing that once his petition is approved he "will continue 
to utilize the business model that has provided him with such success internationally", the record lacks 
details demonstrating a specific business model utilized by the Petitioner for past projects or an 
intended model for his proposed endeavor in the United States. 
In its totality, the record does not reflect a specific model or plan for the Petitioner's future activities 
or sufficient interest from potential customers, investors, or other relevant entities or individuals to 
demonstrate that he is well positioned to advance his proposed endeavor as an urban renewal 
consultant. Because the Petitioner has not established that he is well positioned to advance his 
endeavor as required by the second prong of the Dhanasar framework, he is not eligible for a national 
interest waiver. Accordingly, discussion of the balancing factors under the third prong would serve 
no meaningful purpose. We decline to reach and hereby reserve remaining arguments concerning his 
eligibility under the third prong of the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 
25 ( 197 6) ( stating that "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 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). 
ORDER: The appeal is dismissed. 
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