dismissed EB-2 NIW Case: Dermatology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 04, 2023 In Re: 29096229 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneurial dermatologist, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability. See 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) immigrant 
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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish 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. 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 Christa 's, Inc. , 26 I&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 would be in the national interest. 
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, 26 I&N Dec. 884 (AAO 2016). 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
We address whether the Petitioner has established that a waiver of the job offer requirement, and thus 
of the labor certification, would be in the national interest. 
The Director concluded that the Petitioner's substantially meritorious proposed endeavor did not rise 
to a level of national importance as required by the first prong of Dhanasar. The Director also 
determined that the Petitioner was not well positioned to advance their proposed endeavor. And the 
Director concluded that on balance of applicable factors, a waiver of the requirement of a job offer, 
and thus a labor certification, would not be beneficial to the national interest. 
On appeal, the Petitioner contends that the Director erroneously denied the petition under the 
preponderance of the evidence standard and instead imposed "novel substantive and evidentiary 
requirements beyond those set forth in the regulations." The Petitioner specifically assigned error 
alleging that the Director did not "give due regard" to the business plan, "definitive statement," letters 
of recommendation, and industry report and articles they submitted into the record. They state on 
appeal that the evidence they submitted in the record prior to and at appeal demonstrated that the 
Petitioner meets all three prongs under the Dhanasar framework and merits a discretionary waiver of 
the job offer, and thus the labor certification, in the national interest. 
2 
A. The Proposed Endeavor 
In Part 6 of the initial petition, the Petitioner described their endeavor as a "dermatologist" who would 
"diagnose and treat diseases relating to the skin, hair, and nails. May perform both medical and 
dermatological surgery functions" 1 Specifically, as described in their statements and their business 
plan, they would chiefly "continue [their] career in the U.S. in the medical field providing [their] 
expertise in the areas of dermatology, dermatological surgery and skin care" in order to "assist medical 
institutions and professionals in the U.S. with [their] expertise in dermatology in management and 
minimization of impacts generated by skin neoplasms in the American population." The Petitioner 
described their endeavor as a "career plan" to proliferate their "specialized knowledge in dermatology 
and years of experience in the treatment of skin cancer to continue saving lives." The Petitioner's 
statement identified their endeavor's main services as providing "comprehensive care to the patients, 
in addition to maintaining the family updated with the progress and condition of the patient's type of 
disease." The Petitioner's statement further explains that "with [their] experience in diagnosing skin 
lesions, focused on the prevention and early diagnosis of skin cancer" they would "have an impact on 
the survival of the world population, and therefore, also on the American population" by reducing the 
morbidity and mortality of non-melanoma and melanoma type skin cancers. In essence, the record 
developed initially at the time of filing demonstrated that the Petitioner's proposed endeavor was 
essentially a job search. And the purpose of a national interest waiver is not to facilitate a petitioner's 
U.S. job search. 
In their response to the Director's request for evidence (RFE), the Petitioner maintained that the thrust 
of their proposed endeavor was the provision of dermatological services but also incorporated an 
entrepreneurial element whereby they would "help patients of the United States as a Dermatologist in 
the field of medicine, while also helping with the administrative tasks of opening and operating a 
health services clinic." 
A petitioner must establish eligibility for the benefit they are seeking at the time the petition is filed. 
See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. 
See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc Comm'r 1998). The Petitioner's extensive 
revisions here are troublesome. The activities of a practicing dermatologist performing clinical patient 
care are manifestly different than those of an entrepreneur building and growing a small business. 
Materially different duties can tend to constitute a materially different endeavor and introduce 
ambiguities which prevent analysis into a proposed endeavor's substantial merit or national 
importance. 
But the record here supports that the Petitioner's substantial additions to the proposed endeavor 
submitted in response to the Director's RFE described a manner or philosophy through which the 
Petitioner would carry out their duties of their proposed endeavor and not a different proposed 
endeavor. So the Petitioner's extensive revisions, whilst concerning, did not disrupt the character and 
nature of the proposed endeavor initially described by the Petitioner. 
1 The Petitioner has not provided any evidence in the record supporting their licensure to practice as a physician in the 
State of California. We note this issue so that it can be addressed in any future immigration proceedings where the 
Petitioner's occupation as a dermatologist is applicable. The analysis of the Petitioner's endeavor under the first prong of 
the Dhanasar analytical framework is not influenced by the Petitioner's medical licensure status. 
3 
B. The Proposed Endeavor's Substantial Merit and National Importance 
We agree with the Director's conclusion that the Petitioner has not sufficiently demonstrated the 
national importance of their proposed endeavor under the first prong of the Dhanasar analytical 
framework. To satisfy the first prong under the Dhanasar analytical framework, the Petitioner must 
demonstrate that their proposed endeavor has both substantial merit and national importance. This 
prong of the Dhanasar framework 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. 
The record here supports the Director's determination that the Petitioner's proposed endeavor, which 
aims to address the health and well-being of individuals with diseases of the skin, has substantial merit. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirements, we look to evidence documenting the "potential prospective impact" of their work. In 
determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In 
Dhanasar, we farther 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. The broader implications of the proposed endeavor, national 
and/or international, can inform us of the proposed endeavor's national importance. That is not to say 
that the implications are viewed solely through a geographical lens. Broader implications can reach 
beyond a particular proposed endeavor's geographical locus and focus. The relevant inquiry is 
whether the broader implications apply beyond just narrowly conferring the proposed endeavor's 
benefit. And 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. Thus, it is not what duties 
or what occupation the noncitizen will fill or perform but their actual plan with their occupation and 
duties that is examined. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); see also the definition ofburden 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The evidence and argument the Petitioner introduced into the record does not help them carry their 
burdens of production and persuasion. In support of their claim that they can satisfy the first prong of 
the Dhanasar analytical framework, the Petitioner provided articles from media, professional, and 
industry publications that attempted to identify the role of dermatologists in health care, the prevalence 
4 
I 
and availability of and demand for dermatological services, work experience letter, letters or 
recommendation, support letters, and documentation describing the types of service dermatologists 
offer. The Petitioner's RFE response introduced documentation and information about a general 
affinity for business development, entrepreneurialism, and small business advocacy along with a new 
"Definitive Statement" in an attempt to characterize their endeavor as nationally important. 2 The 
Petitioner also submitted an ex ert opinion letter froml Ian assistant professor of 
medical education at.....,...____ ,.........University and University ofi IHealth Science Center, 
School of Medicine at.__ ____,__....,.as and research assistant professor at University ofl 
Health Science Center at exas. 
'---------' 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. See Matter ofCaron Int 'I, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts su porting a
7petition is not presumptive evidence of eligibility. Id. The record does not establishl~--~expertise 
regarding dermatology or the provision of clinical dermatology services to patients. The record does 
not make clear how their experience and individual qualifications render them an industry expert such 
that their opinion could shed light on the national importance of the Petitioner's endeavor. More 
importantly, setting aside the authors' credentials, we observe that much of the letter's content lacks 
relevance when it comes to the evaluation of whether the Petitioner's work rises to the level of national 
importance. For example, the writer highlights the role dermatologists could play in management of 
skin changes caused by COVID-19. But the Petitioner's business plan does not highlight or emphasize 
the treatment of COVID-19 co-morbidities. In fact, the Petitioner's business plan focuses on providing 
services in general dermatology, Mohs surgery, reconstructive surgeries, facial and body aesthetics, 
laser, and other technologies as services the Petitioner's proposed endeavor would conduct with an 
aim to provide affordable medicine, diagnostics, reconstructive surgeries, and skin care services with 
a focus on cancer patients. So, the Petitioner's proposed endeavor aims to provide special em~hasis 
to cancer patients and not COVID-19 afflicted individuals as explained byl oints 
out the Petitioner's commitment to "help individual in need medical services, including those that are 
uninsured" as a point in favor of the national importance of the Petitioner's proposed endeavor. The 
Petitioner's business plan does mention an intention to work with Medicare, Medicaid, and private 
insurance entities in concert with providing services on a discount or sliding fee scale. But the record 
does not support how service to the medically indigent by and through the Petitioner's proposed 
endeavor would broadly implicate matters of national importance or have positive economic impacts. 3 
And the author's special recognition of the Petitioner's prior experience in the Brazilian health care 
system is not persuasive to support the national importance of the Petitioner's proposed endeavor. The 
record does not adequately support the assertion that provision of the proposed endeavor's services 
after participation in the Brazilian health care system would implicate broader issues influencing 
national matters of importance. The national interest waiver process is a discretionary waiver of the 
labor certification to address those endeavors performed by foreign nationals rising to a level of 
concern with implications to the national interest. 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 Physicians committed to work for five years in federally designated shortage areas and whose work is deemed to be in 
the public interest may pursue a national interest waiver under a separate section of INA 203(b )(2)(B). See INA section 
203(b )(2)(B)(ii), 8 U.S.C. § l l 53(b )(2)(B)(ii). 
5 
It is also unclear from the evidence in the record whether the work of a single dermatology practice, 
irrespective of its success or failure, would have a significant impact on the field beyond its immediate 
sphere of influence. The evidence in the record does not highlight how the prospective potential 
impact of the work of one professional or group of professionals in a dermatology practice could have 
broader implications implicating the national interest. The Petitioner in their business plan tries to 
highlight the broader implications of their endeavor by linking it to the treatment of cancer patients. 
But, as we stated earlier, we do not view the broader implications of a proposed endeavor through a 
narrow lens, such as geography or demographics. Whilst the health and welfare of individuals afflicted 
by cancer holds merit, the record does not sufficiently describe how the "ripple effects" of treating 
skin cancer patients implicates the greater national interest. The provision of general dermatology 
treatments or Mohs surgery directly benefits only those individuals with pets availing themselves of 
the Petitioner's services in those disciplines. This is akin to how the benefit of someone's teaching is 
generally only directly beneficial to the students being taught and not the wider population. In 
Dhanasar we discussed how teaching would not impact the field of education broadly in a manner 
rising to national importance. Dhanasar at 893. By extension activities which only benefit a small 
subset of individuals, like the Petitioner's dermatology practice, would not rise to a level of national 
importance. Neither provides any meaningful analysis of the endeavor's broader implications or 
potential prospective economic impact rising to the level of national importance. Similarly, the letters 
of recommendation containing testimonials of the services the Petitioner performed do not describe 
how the benefits they have received connect to broader implications rising to national importance or 
any nationally important economic impact. 4 In sum the record supports the conclusion that the 
potential impact of the endeavor of providing services such as general dermatology, Mohs surgery, 
reconstructive surgeries, facial and body aesthetics, laser and other technologies would benefit only 
the patients engaging the service. 
The record also contains insufficient evidence to support the positive economic effects the Petitioner 
expects will be realized by their proposed endeavor. The Petitioner roots the potential positive effects 
of their dermatology practice! Iin their potential for job creation 
and revenue generation. The Petitioner optimistically expects that the endeavor would realize total 
revenue of$24,967,970 and an employee census of 81 people within five years of establishment. But 
the record contains insufficient documentation to support the Petitioner's projections. 5 And the 
Petitioner's business plan expresses an intention to establish itself in Small Business Administration 
(SBA) designated HubZone. The HUBZone program's goal is to promote business growth in 
underutilized business zones with the goal of awarding 3% of federal contract dollars to companies 
that are HUBZone certified. Joining the HUBZone program makes a business eligible to compete for 
certain federal contracts in the "set-aside" category. There are several required qualifications to 
participate in the program, but the most dispositive requirement for purposes of our analysis is that the 
business seeking to participate in the HUBZone program must be at least 51 % owned by U.S. citizens, 
a community development corporation, an agricultural cooperative, an Alaska Native corporation, a 
4 Much of the documentation the Petitioner has submitted focuses on their individual accomplishments and expe1iise when 
attesting to the national importance and substantial merit of the proposed endeavor. It is important to note that the 
Petitioner's accomplishments and expertise are more relevant to the second prong of Dhanasar, which "shitts the focus 
from the proposed endeavor to the foreign national." Dhanasar at 889. 
5 "The aspirational fiscal and head count projections from the Petitioner's proposed endeavor appear incompatible with the 
endeavor's intention to provide services in traditional low reimbursement environments, like the charity care, discounted, 
or sliding fee scale reimbursement models the Petitioner mentions in their business plan." 
6 
Native Hawaiian organization, or an Indian tribe. Whilst it is unknown and the record is silent about 
what if any federal programs exist in the "set-aside" category for dermatology practices like the one 
proposed by the Petitioner, the record is crystal clear that the Petitioner's proposed endeavor would 
be wholly owned and controlled by the Petitioner and that the Petitioner is not a U.S. citizen, a 
community development corporation, an agricultural cooperative, an Alaska Native corporation, a 
Native Hawaiian organization, or an Indian tribe. So the fact that the Petitioner' proposed endeavor 
may be in a HUBZone is wholly irrelevant to whether the Petitioner's endeavor rose to a level of 
national importance. And to the extent the Petitioner is asserting that their location or intention to 
locate, and not participation, in the HubZone program is relevant to the national importance of their 
endeavor, the record does not adequately establish the parameters the SBA considers in establishing 
HubZones such that we could evaluate whether the underutilized business zones the SBA identifies 
would be akin to the economically depressed areas within creating employment could be a potential 
positive economic effect relating to the national importance of a proposed endeavor. So the record 
does not support any potential positive economic effects, such as beneficially addressing high 
unemployment in economically depressed areas in a manner meaningful enough to implicate the 
national interest and rise to the level of national importance. 
The manifest thrust of the Petitioner's claim of eligibility for the act of discretion to waive the 
requirement of a job offer, and thus a labor certification, in the national interest comes from the 
Petitioner's claims regarding their profession's importance, their past career as a dermatologist in their 
home country, and their dedication to their field. But these attributes, critical as they may be for an 
endeavor's success, are not germane to the question of whether a proposed endeavor elevates to a 
position of national importance. We are not concerned with an individual petitioner when evaluating 
the first prong of the Dhanasar analytical framework; we are focused on the petitioner's proposed 
endeavor. The success of the endeavor, or attributes that could tend to make the endeavor more 
successful, are consequently not as important as determining whether the proposed endeavor itself 
stripped away from a petitioner, has attributes that would highlight the prospective positive impact of 
its broader implications or positive economic effects rising to a level of national importance. So we 
conclude that the Petitioner has not established that their proposed endeavor is of national importance. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. Because 
this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining 
arguments concerning eligibility under the remaining Dhanasar prongs. 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 ofL-A-C-1, 26 I&N Dec. 216, 526n.7 
(BIA 2015) (declining to reach alternate issues on appeal where an applicant is otherwise eligible). 
So we conclude the Petitioner has not established that they are eligible for or otherwise merit a national 
interest waiver of the job offer requirement, and thus of a labor certification. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
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