The Petitioner seeks employment-based second preference (EB-2) immigrant classification as either a member of the professions holding an advanced degree or 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).
The Director of the Nebraska Service Center denied the petition, concluding that, while the record established the Petitioner was eligible for the requested EB-2 immigrant classification as an advanced degree professional, it did not establish the Petitioner was an individual with exceptional ability or that she was eligible for the requested national interest waiver. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 l&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.
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.
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.
Profession is defined as one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 1 8 C.F.R. § 204.5(k)(3).
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). 2 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 3 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. 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,4 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.
Id.
Analysis
The Petitioner seeks EB-2 immigrant classification to continue to work in the United States in the occupation of real estate brokers and sales agents through her company, I I The Director determined the record established that she is an advanced degree professional but did not establish she is an individual of extraordinary ability in the arts, sciences, or business, or that she qualifies for the requested national interest waiver. On appeal, the Petitioner continues to assert her eligibility for EB-2 immigrant classification as an individual of extraordinary ability and for the national interest waiver.
Upon de novo review, we conclude that the record does not establish the Petitioner qualifies for EB-2 immigrant classification as either a member of the professions holding an advanced degree or an individual with exceptional ability, nor does the Petitioner qualify for the requested national interest waiver under the Dhanasar 3-prong framework.
A. Advanced Degree Professional
The Director concluded the Petitioner qualified as an advanced degree professional due to her attainment of a foreign degree equivalent to a U.S. advanced degree. We disagree. The possession of an advanced degree alone does not make an individual qualified for EB-2 immigrant classification, as a petitioner must establish they are both a "member of the professions" and "hold[] an advanced degree." 8 C.F.R. § 204.S(k)(l); see also 6 USCIS Policy Manual, supra at F.5(A)(l); Matter ofShin, 11 I&N, Dec. 686, 688 (Dist. Dir. 1966) (noting that the mere acquisition of a degree alone does not qualify a person as a member of a profession). As stated, the definition of profession at 8 C.F.R. § 204.5(k)(2) includes "any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation."
On her Form I-140, Immigrant Petition for Alien Workers, the Petitioner indicated her intention to work in the United States as a real estate broker and sales agent, under the Standard Occupational Code (SOC Code) 41-9022. She also stated her duties would include "solicit[ing] potential clients to buy, sell, and rent properties; advis[ing] clients on prices, mortgages, market conditions, and related information[; and] [ c ]ompar[ing] properties to determine market price." In support of her endeavor, the Petitioner also submitted printouts from the Department of Labor's Occupational Outlook Handbook discussing the real estate brokers and sales agents occupation, which indicates that the typical entry-level education for this occupation is a high school diploma or equivalent.
Because the record shows the occupation ofreal estate brokers and sales agents does not require a U.S. baccalaureate degree or foreign equivalent as "the minimum requirement for entry into the occupation," we disagree with the Director's conclusion that the Petitioner is a member of the professions as defined at 8 C.F.R. § 204.S(k)(l )-(2) and withdraw their conclusion to the contrary. 5 8 C.F.R. § 204.S(k)(l)-(2).
B. Individual of Exceptional Ability
The Director concluded that the Petitioner is not an individual of exceptional ability as she only satisfied two of the six regulatory criteria, 8 C.F.R. § 204.5(k)(3)(ii)(A) and (C), regarding attainment of a degree, diploma, certificate, or similar award and a license to practice the profession or certification for a profession or occupation. On appeal, the Petitioner contends that, in addition to these two criteria, she meets the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (D), relating to having acquired ten years of foll-time experience in the occupation and commanding a salary or remuneration demonstrating exceptional ability. The Petitioner does not assert error in the Director's conclusions regarding the remaining criteria at 8 C.F.R. § 204.5(k)(3)(ii)(E) and (F), nor does she claim to meet these criteria on appeal; therefore, we consider the issue ofeligibility under these criteria 5 As the resolution of the issues pertaining to the Petitioner's eligibility for the requested national interest waiver under the first prong of the Dhanasar analytical framework is dispositive of this appeal, it would serve no legal purpose to issue a request for evidence for further investigation and analysis. p. 4 to be waived. See Matter ofR-A-M-, 25 I&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived).
Upon de novo review of the record, we agree with the Director's ultimate determination that the Petitioner has not established she is an individual of exceptional ability, and, for the reasons discussed below, we withdraw the Director's conclusion that the Petitioner meets the criteria 8 C.F.R. § 204.5(k)(3)(ii)(C). 6
Evidence in the form ofletter(s) from current orformer 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. 8 C.F.R. § 204.5(k)(3)(ii)(B)
The Director concluded that the record did not establish the Petitioner met this criterion. We agree. The Petitioner filed the underlying petition on June 26, 2023. As such, to satisfy this criterion, she must establish she obtained ten years of full-time experience prior to June 26, 2023. 7 And to satisfy the plain language ofthis criterion, the evidence must (1) be in the form ofletter(s), (2) be from current or former employer(s), and (3) establish at least ten years of full-time experience. Further, such letters "shall include a specific description of the duties performed." 8 C.F.R. § 204.5(g)(l).
The Petitioner previously submitted three letters before the Director detailing her employment as a sales representative with I I from 2012 to 2014, as a property manager with I and as a property manager for real estate investor I beginning in 2021.
Notably, none of the letters provided specific dates of employment or confirmed whether her employment was in a full-time capacity. On appeal, the Petitioner submits five additional unsigned letters confirming her employment from October 2012 to March 2017 and from September 2018 to the filing of this petition, including a letter evidencing her employment with I Ibetween June 2014 to March 2017.
These letters do not satisfy the plain language of the regulatory criterion. First, the Petitioner claimed employment covers a total period of less than nine-and-a-half years (from October 2012 to March 2017 and from September 2018 to June 2023). And only the letters submitted on appeal from I I I I indicate that her employment between October 2012 to March 2017 was in a full-time capacity, but these letters are unsigned and thus have diminished probative value. The letters from her other employers do not indicate whether her employment from September 2018 to the filing of this petition was full-time. Additionally, the Petitioner has not explained how her experience as a sales representative with I a company specializing in the sale ofhealth, hygiene, and home products is in the "occupation sought" of real estate broker and sales agent.
As such, the record does not establish the Petitioner meets the plain language of the regulation. 6 The record does not otherwise establish the Petitioner meets three ofthe regulatory criteria, and therefore issuing a request for evidence or notice of intent to deny allowing the Petitioner to supplement the record would serve no legal purpose. 7 See 8 C.F.R. § 103.2(b )( l) and Matter o/Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971) (requiring a petitioner to establish eligibility for the benefit they are seeking at the time the petition is filed).Not eligible at the time of filing
A license to practice the profession or certification for a particular profession or occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C)
To satisfy this criterion, the Petitioner submitted a copy of her real estate salesperson license from the State ofCalifornia Department ofReal Estate. The plain language ofthe regulation requires the Petitioner to provide "a license to practice the profession or a certification for a particular profession or occupation." 8 C.F.R. § 204.5(k)(3)(ii)(C) [emphasis added]. As discussed above, because the real estate broker and sales agent occupation does not require a U.S. baccalaureate degree or foreign equivalent as "the minimum requirement for entry into the occupation," we cannot conclude that this occupation qualifies as a profession as defined at 8 C.F.R. § 204.5(k)(3). Therefore, the Petitioner has not established that she has a license "to practice a profession." Likewise, the Petitioner has not shown that a salesperson license is a "certification" for an occupation. Without more, we cannot conclude that the Petitioner has met the plain language of this criterion and withdraw the Director's conclusion to the contrary. Evidence that the Petitioner has commanded a salary, or other remuneration/or services, which demonstrate exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) To satisfy this criterion, the evidence must show that an individual has commanded a salary or remuneration for services that is indicative of their claimed exceptional ability relative to others working in the field. 8
The Petitioner previously submitted copies of her company's 2022 tax returns, indicating a gross receipts or sales of$388,427 and a total income of $139,762, along with various reports establishing that the median salary for real estate sales agents in the United States is between $48,340 and $52,030, and $50,442 in California. On appeal, the Petitioner has supplemented the record, providing an Occupational Employment and Wages report from the Bureau of Labor Statistics indicating that the annual mean salary for real estate sales agents is $65,850, and the mean salaries for real estate sales agents in four metropolitan areas in California range from $86,630 to $92,270. In addition, she has provided a letter from her company's accountant stating that for financial year 2023 the company "earned a net income of $136,468."
Upon review, we conclude that the Petitioner has not provided documentation showing that her remuneration demonstrates exceptional ability relative to others in the field. First, while the Petitioner has provided evidence of her company's total earnings, she compares these earnings to reported salaries of real estate sales agents. But she does not explain how salary data for others in her field compares to her company's total profits, nor has she identified the specific remuneration or salary she has received from her company to compare this amount to the reported salaries. And the evidence in the record, including the company's business plan, indicates that the Petitioner owns 50% of the company. As such, it appears that the Petitioner could only claim 50% ofthe company's total earnings, equating to $68,234 for 2023 and $69,881 for 2022. These earnings are consistent with the reported salaries of real estate brokers and sales agents, and do not demonstrate that the petitioner commanded a salary or remuneration for services that is indicative of their claimed exceptional ability. 8 See 6 USCIS Policy Manual, supra, at F.5(B)(2).
For all these reasons, we agree with the Director that the Petitioner has not satisfied her evidentiary burden to establish that she meets this criterion.
Because the Petitioner did not establish that she meets at least three of the evidentiary criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A) through (F), we need not conduct a final merits analysis to determine whether the evidence in its totality shows that she is recognized as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2).
C. National Interest Waiver
The first Dhanasar 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. Dhanasar, 26 I&N Dec. at 889. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Id.
The record reflects that the Petitioner intends to continue to serve as a real estate broker and sales agent through her company to provide "high-quality corporate housing rental units designed to meet the needs of professionals and their families who are relocating or visiting specific areas for workrelated activities." According to her business plan, the company's rental units would be "strategically located in areas with a strong demand for corporate housing, driven by temporary assignments, conferences or company-sponsored vacations." In addition to marketing her properties to businesses requiring accommodations for their employees, she will target her rentals to insurance companies whose clients have been affected by fires, floods, or other disasters.
In support ofher endeavor, the Petitioner provided an autobiographical statement, a five-year business plan, an expert opinion letter, and multiple letters of recommendation. Additionally, she submitted industry reports and news articles discussing the growing demand for housing in the United States, the growth of remote work, and the displacement of communities due to natural disasters like wildfires, flooding, and other weather-related disasters, and the burden placed on neighboring communities to house displaced individuals.
The Director concluded that she had not established eligibility for the requested national interest waiver, as she did not satisfy the Dhanasar three-prong framework. While the Director did not make a specific conclusion regarding the substantial merit of the Petitioner's endeavor, they explained that the evidence on record did not establish the endeavor's national importance. On appeal, the Petitioner claims that the decision "was founded on an erroneous application of law or policy" and inaccurate based on the record. In doing so, she generally relies on the same claims previously made before the Director to establish the national importance of her endeavor.Proposed endeavor too vague
Upon de novo review, we conclude that record contains sufficient documentation, including industry reports and articles addressing the real estate industry and the need for temporary housing options, to establish the substantial merit ofthe Petitioner's endeavor. However, the record does not demonstrate its national importance.
On appeal, the Petitioner states that her endeavor is in the national importance given the broad implications of the real estate field, asserting that "the real estate industry is a fundamental driver of economic growth, creating a ripple effect across various sectors," but this reliance on the real estate industry is misplaced. In Dhanasar we said that, in determining national importance, the relevant question is not the importance of the field, industry, or profession in which a petitioner may work; instead, we focus on "the specific endeavor that the foreign national proposes to undertake." Dhanasar at 889. We therefore "look for broader implications" of the proposed endeavor, noting that "[a]n undertaking may have national importance for example, because it has national or even global implications within a particular field." Id. We also stated that "[a]n 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." Id. at 890.
Regarding the broader implications of her endeavor, the Petitioner claims that it "aligns seamlessly with national priorities regarding housing availability and affordability" because she will contribute to "efforts aimed at addressing housing shortages and ensuring that housing remains accessible to a diverse population." Similarly, she also claims that, as a real estate broker and sales agent, she will foster homeownership leading to stable and thriving communities. But she has not supported these assertions with relevant and probative evidence corroborating her statements. A petitioner must support assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. And, according to the Petitioner's business plan, she intends to specialize in offering temporary, tum-key rental housing to individuals. As such, it is not clear how this endeavor would foster homeownership in the United States. Nevertheless, even ifthe record established the Petitioner intended to focus on selling permanent, affordable housing, she has not shown how her endeavor would result in broader implications to the real estate industry, beyond the immediate benefit she may provide to her clients.No broader implications shown Generalized conclusory statements that do not identify a specific impact in the field have little probative value. See e.g., 1756, Inc. v. US Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions in immigration benefits adjudications).
The Petitioner also claims she will "expand the real estate agent industry" due to her "innovative strategies" to include utilizing flyers containing quick response (QR) codes, which will provide her renters with quick access to information about their rental units. Additionally, through the QR codes, she will provide categorized information on local attractions and recommendations for food, entertainment, and emergency services. While these offerings may be beneficial to her customers, and ultimately serve as a viable marketing method for the expansion of her business, they do not likewise result in broader implications to the field. Activities which only benefit a small subset of individuals, like the Petitioner's proposal to utilize QR codes to offer convenience to her renters do not rise to a level of national importance. See Dhanasar at 893 ( concluding that a single teacher's work, which will generally only directly benefit their students as opposed to an industry at large is not in the national importance).
Finally, we conclude that the record does not establish the Petitioner's endeavor has a significant potential to employ U.S. workers or result in substantial economic benefits as contemplated in Dhanasar.Job creation or economic claims unsupported According to the Petitioner's business plan, the company currently employs one full-time employee (the Petitioner), and one part-time accountant. By the fifth year of its operations, the p. 8 Petitioner anticipates employing 27 employees, comprised of two full-time employees (a branch manager in addition to the Petitioner) and 25 part-time employees to include branch managers, an interior designer, cleaners, maintenance workers, and an accountant. This would result in an annual payroll expense of $613,141. Additionally, by her fifth year of operations, she anticipates reaching gross annual sales of $5,372,400, resulting in an annual tax payment of $300,037. Notably, however, the business plan does not provide sufficient explanation for the basis of these projections. And, even if the endeavor's revenue and job creation projections were properly explained and supported with evidence, the Petitioner has not demonstrated how the proposed employment numbers and stated revenue would impact the area of intended operations or otherwise establish that the endeavor would operate on a scale rising to the level of national importance contemplated in Dhanasar.
For the reasons discussed, the Petitioner has not demonstrated that her proposed endeavor would be of national importance, and she therefore does not meet the requirements of the first prong of the Dhanasar analytical framework.
Conclusion
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude that she has not established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's eligibility and appellate arguments under Dhanasar's second and third prongs. See INS v Bagamasbad, 429 U.S. 24, 25 ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reached"); see also Matter of L-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.