dismissed EB-2 NIW Case: Audiology And Speech Pathology

U.S. Citizenship 
and Immigration 
Services 
In Re : 16150891 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 8, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an audiologist and speech pathologist, seeks second preference immigrant 
classification as a member of the professions holding an advanced degree and as an individual of 
exceptional ability, as well as a national interest waiver of the job offer requirement attached to this 
EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. 
§ l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits a brief asserting that she is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available . .. to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Furthermore, while 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, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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 off er and thus of a labor 
certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the 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, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job off er or for the petitioner too btain a labor ce1iification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
2 
national' s contributions; and whether the national interest in the foreign national' s contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
The Director did not make a determination regarding the Petitioner's eligib lity as either a member of the 
professions holding an advanced degree or as an individual of exceptional ability. The record reflects 
that the Petitioner possesses the foreign equivalent of an advanced degree. Accordingly, the Petitioner 
qualifies as a member of the professions holding an advanced degree. See 8 C.F.R. § 204.5(k)(2) and 
(3)(i)(A). 4 
B. National Interest Waiver 
The remaining issue to be determined is whether the Petitioner has established that a waiver of the 
requirement of a job off er, and thus a labor certification, would be in the national interest. For the 
reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated eligibility under the first prong of the Dhanasar analytical framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a statement indicating: 
I intend to continue using my expertise and knowledge in the field of audiology, speech 
pathology and healthcare by continuing my career as an Audiologist in the United States, 
providing my services to hospitals, nursing schools, medical clinics, home healthcare 
businesses, and wherever I can help alleviate the severe shortage of Audiologists .... 
My career plan in the United States is to work with a health care facility to provide expert 
advice and treatment to patients .... 
In response to the Director's request for evidence (RFE), the Petitioner offered an updated statement 
indicating: 
I intend to continue using my expertise and knowledge, gained through 13 years of 
professional experience, to work as an Audiologist, providing significant contributions to 
the treatment of hearing and speech-related pathologies for the betterment of societal and 
economic wellbeing in the United States .... 
3 SeeDhanasar, 26l&NDec. at 888-91, for elaboration on these three prongs. 
4 As she meets the classification as a member of the professions holding an advanced degree, a determination regarding 
the Petitioner's classification as an individual of exceptional ability is moot. 
3 
Specifically, I plan to promote significant benefits to the U.S. health and communication 
treatment through my prospective business endeavor,~---------~ 
~-------'a center through which I will provide outpatient services and Audiology 
treatment with a particular focus on dysphasia, or swallowing disorders, which dismpt 
quality oflife and also serve as an indicator for morbidity in the medical setting. 
Additionally, I will continue to support U.S. business and educational institutions with my 
expertise in Audiology and Speech-Pathology, to continue my impact in developing 
communication skills for those impaired in that area through the U.S. population and 
particularly in children .... 
The Petitioner maintains on appeal that her "endeavor aims to actively apply her expertise as an 
Audiologist and Speech Pathologist, particularly in the treatment of patients with communication skills, 
to enhance the population's health," and "[h ]er proposed endeavor strictly relates to national urgencies 
and concerns, such as audiologist's contributions to the U.S. healthcare system, as well as to the 
enhancement and improvement of Americans' health." The Director determined that the Petitioner 
demonstrated the substantial merit of her proposed endeavor, and the record supports that conclusion. 5 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently shown 
the national importance of her proposed endeavor. 
In determining national importance, the relevant question is not the impmiance 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. Here, the Petitioner 
must demonstrate the national importance of her specific audiology or speech pathology services 
rather than the national importance of the overall positions or fields or the wide range of healthcare 
settings in which she intends to work. In Dhanasar, we further noted 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. 
In her appeal brief, as well as throughout this proceeding, the Petitioner emphasizes that she is "a 
multiskilled professional, with highly qualified experience and expertise in the field." The Petitioner's 
experience and abilities in her field, however, relate to the second prong of the Dhanasar framework, 
which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here 
is whether the specific endeavor that she proposes to undertake has national importance under 
Dhanasar's first prong. 
5 The record includes documentation regarding the job market for audiologists in the United States, including their 
descriptions. roles. and responsibilities. 
4 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of her work. Although the 
Petitioner asserts that "[h]er proposed endeavor presents extensive national benefits to the United 
States, as it has national implications within the healthcare field; will broadly enhance societal welfare; 
and, impacts healthcare matters that federal and state governments have described as having national 
importance," she has not offered sufficient, specific information and evidence to demonstrate that the 
prospective impact of her specific proposed endeavor rises to the level of national importance. 6 
Instead, the record contains evidence regarding general information relating to audiologists, speech 
therapists, and speech-language pathologists. 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, the record does not show that the Petitioner's proposed 
endeavor of providing audiology and speech pathology services stand to sufficiently extend beyond 
her potential patients, to impact the audiology and related fields or the U.S. economy more broadly at 
a level commensurate with national importance. 
Furthermore, the Petitioner has not established that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. While she references a "steep shortage of qualified professionals in the field in 
the U.S.," such shortages of qualified workers are directly addressed by the U.S. Department of Labor 
through the labor certification process. In addition, the Petitioner did not demonstrate how providing 
her services would somehow influence those figures. Without sufficient information or evidence 
regarding any projected U.S. economic impact or job creation attributable to her future work, the record 
does not show that the benefits to the U.S. regional or national economy resulting from the Petitioner's 
services would reach the level of "substantial positive economic effects" contemplated by Dhanasar. Id. 
at 8 90. Accordingly, the Petitioner's proposed endeavor does not meet the first prong of the Dhan asar 
framework. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined inDhanasar, therefore, would serve no meaningful purpose. 
6 As indicated above, in response to the Director's RFE, the Petitioner asserted her intention to open an audiology treatment 
service and presented a business plan. The Petitioner, however, did not make this claim at initial filing. Eligibility must 
be establishedatthetimeoffiling. 8 C.F.R. §§ 103.2(b)(l ), (l2);MatterofKatigbak, 14 I&NDec. 45, 49 (Reg'lComm'r 
1 9 71 ). A petition cannot be approved at a future date after the petition er becomes eligible under a new set of facts. Malter 
of Izummi, 22 T&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter ofBardouille, 18 T&N 
Dec. 114 (BIA 1981), that USCTS cannot"considerfacts that come into being only subsequent to the filing of a petition." 
Id. at 176. Regardless, it is important to acknowledge that Dhanasar provided examples such as "endeavors related to 
research, pure science, and the furtherance of human knowledge" which "may qualify, whether or not the potential 
accomplishments in those fields are likely to translate into economic benefits for the United States." The Petitioner did 
not establish that herproposedaudiology business is similarto any of the listed endeavors, such that she would meet the 
national importanceportionofthe first prong. In addition, the Petitioner did notshowthat her company's projected futme 
staffing levels of 6 - 7 positions or revenues would provide substantial economic benefits to an unidentified location in 
Florida or the United States, nor did she demonstrate that the business would be situated in an economically depressed 
area or that she would employ a significant population of workers in that area. 
5 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong oftheDhanasar analytical framework, we conclude 
that she has not demonstrated that she is eligible for or otherwise merits a national interest waiver as 
a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
6