The Petitioner, an entrepreneur in the real estate construction industry, seeks employment-based second preference (EB-2) immigrant classification as 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 Texas Service Center denied the petition, concluding that although the Petitioner qualified as an advanced degree professional, he had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. 1 The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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 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, 2 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 1 An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States 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). 2 See also 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v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver to be discretionary in nature).
- On balance, waiving the job offer requirement would benefit the United States.
The Petitioner proposes to continue to be the chief executive officer of his two companies. One company coordinates the construction projects and the other is responsible for the related investments. The first prong of the Dhanasar framework, 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 Director determined that the Petitioner's proposed endeavor is of substantial merit, and we agree. Turning to the national importance of his endeavor, the Director concluded that the Petitioner did not establish that his proposed endeavor has national importance.
On appeal, the Petitioner generally contends that the Director did not give due regard to his business plan, letters of recommendation and awards, industry reports and articles, company documents, and documents regarding his invention. 3 He further asserts that he qualifies for a national interest waiver.Support letters generic or unsupported 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 "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. We further indicated that "we look for broader implications" of the proposed endeavor and 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.
We have reviewed the business plan and its projections that the company will directly employ 12 full-time and part-time employees within five years and, during that period, cumulatively pay wages of $569,236 and generate over $27 million in revenue. Importantly however, these employment and revenue projections are not supported by details showing their basis, nor do they demonstrate a significant potential to either employ U.S. workers or to substantially impact the regional or national economy. Specifically, the record does not support that the direct creation of 12 additional foll-time and part-time jobs in this sector or the expected revenue generated by the company will have a substantial economic benefit commensurate with the national importance element of the first prong of the Dhanasar framework.Job creation or economic claims unsupported Although the Petitioner's business plan shows his intention to expand his company and help with the shortage of affordable housing for low-income families across the United States, he has not offered sufficient information and evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of national importance.Relied on a labor shortage
In addition, the Petitioner relies on more than 30 years of experience in business management. However, the Petitioner's expertise and record of success are considerations under Dhanasar' s second prong, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the Petitioner has demonstrated, by a preponderance of the evidence, the national importance of his proposed work.
The Petitioner, through industry reports and articles, also emphasizes the importance of the construction industry and entrepreneurship in the United States. We agree that the field of construction and entrepreneurship are important, and that success in the construction field may lead to greater career opportunities and economic advantages. However, as explained above, we focus on "the specific endeavor that the foreign national proposes to undertake," not the importance or economic benefits of his profession or industry. Id. at 889. Here, the articles and reports do not discuss any particulars of the Petitioner's proposed endeavor or its prospective impact rising to the level of national importance. We also reviewed the Petitioner's letters of recommendation. The authors praise the Petitioner's abilities and the personal attributes that make him an asset in the business world. While they evidence the high regard the Petitioner's colleagues have for him and his work, they do not offer persuasive detail concerning the impact of his proposed endeavor or how such impact would extend beyond his business and/or customers.
Although the record reflects that the Petitioner has experience in the construction industry, he has not offered sufficient information and evidence to demonstrate that the prospective impact ofhis proposed endeavor rises to the level of national importance. 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. Here, we similarly conclude that the record does not show that the Petitioner's role stands to sufficiently extend beyond his own companies and their clients to impact the industry more broadly at a level commensurate with national importance. Nor has he shown that the particular work he proposes to undertake offers original innovations that contribute to advancements in construction or otherwise has broader implications for his field.
Because the Petitioner has not established eligibility under the first prong of the Dhanasar test, we need not address his eligibility under the remaining prongs, and we hereby reserve them.