dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 28, 2023 In Re: 26925875 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physician, seeks classification as a member of the professions holding an advanced 
degree. See Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l l 53(b )(2). The 
Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 
immigrant classification. See section 203(b )(2)(B)(i) of the Act. 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the national interest waiver. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show eligibility 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 . Section 203(b)(2)(B)(i) of the Act. 
Once a petitioner demonstrates EB-2 eligibility, 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, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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. 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions holding an 
advanced degree.2 The remaining issue to be determined 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. 
After training in a two-year internship and working as a medical officer at various hospitals, the 
Petitioner opened his own practice inl ISouth Africa, in 2014, where he still worked as a 
"general practitioner/family physician" when he filed the petition in September 2021. Documents 
submitted with the petition indicate that the Petitioner had enrolled in a master's degree program in 
physiological sciences, but that program was due to begin in November 2021, after the filing date. 
The Director concluded that the Petitioner had met only the first prong of the three-pronged Dhanasar 
framework. 
A. Proposed Endeavor 
The Petitioner's initial submission did not describe a single, consistent endeavor that the Petitioner 
proposes to undertake. Rather, the Petitioner has described different options. The Petitioner's own 
statement, a business plan, and letters submitted with the petition referred to several different 
endeavors, including providing medical care to uninsured or underserved populations; pursuing 
credentials in pathology; managing another physician's medical practice; and working in the 
pharmaceutical industry as a medical science liaison. 
The tenn "endeavor" is more specific than the general occupation; a petitioner should offer details not 
only as to what the occupation normally involves, but what types of work the person proposes to 
undertake specifically within that occupation. The explanation of the proposed endeavor should 
describe more than the duties and responsibilities of the occupation, also listing the specific projects 
and goals. See generally 6 USCIS Policy Manual F.5(D), https://www.uscis.gov/policy-manual. 
The materials submitted with the petition do not detail one specific proposed endeavor. Rather, they 
list a number of different avenues that the Petitioner may choose to pursue, based on either his existing 
skills or training that he might acquire in the future after further education or training. Speculation 
about ventures that the Petitioner might undertake in the future does not sufficiently describe a specific 
proposed endeavor to allow for analysis and assessment under the three-prong Dhanasar framework. 
A proposed endeavor entails and requires a specific plan, rather than the skill set that an individual 
uses to put that plan into action. 
2 In 2009, the Petitioner received a degree frorrJ._____.IUniversity in South Africa, equivalent to a Doctor of Medicine 
degree from an accredited U.S. medical school. 
2 
The Petitioner's initial submission included substantial information about medically underserved 
populations. In a request for evidence (RFE), the Director observed that Congress created a separate 
procedure to provide the national interest waiver to physicians seeking to practice in underserved 
areas. See section 203(b )(2)(B)(ii) of the Act. The regulations at 8 C.F.R. § 204.12 describe the 
requirements for physicians to qualify for a national interest waiver under those provisions. The 
publication of Matter of Dhanasar as a precedent decision did not nullify or alter those statutory 
provisions or their implementing regulations. The Petitioner does not claim to have met those statutory 
and regulatory requirements, and he has cited no provision of law that permits a physician to opt out 
of those requirements while still seeking a national interest waiver based on practicing in an 
underserved area. 
The Petitioner's response to the RFE did not directly address the above information, but that response 
included a nanower description of the proposed endeavor, which emphasized research rather than 
clinical practice and made no reference to underserved populations: 
My proposed endeavor is to build on my extensive experience as a primary care 
physician treating and assisting with research on patients with acute COVID-19 as well 
as long COVID .... I plan to pursue a Ph.D. degree in the field of Biomedical Science 
focusing on COVID-19 / long COVID. 
On appeal, the Petitioner states that he "plans to exercise medical practice, particularly in underserved 
areas," and "further intends to be involved in regular research activities." The Petitioner has not 
specified the proportion of time he would devote to practice and to research, and such information is 
necessary in order for USCIS to assess his proposed endeavor fully and accurately. 
B. Substantial Merit and National Importance 
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. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. 
The Director concluded, without elaboration, that the Petitioner had met the first prong of the 
Dhanasar framework. The substantial merit of medical practice and research is not in question here, 
but we disagree with the Director's determination that the Petitioner has shown that the proposed 
endeavor has national importance. 
As discussed above, the Petitioner's proposed endeavor involves both clinical practice and research. 
The Petitioner did not specify which aspect of the proposed endeavor would occupy the majority of 
his time. 
It appears that the Petitioner's direct impact as a practicing physician would largely be limited to the 
patients he would treat and the practice or clinic where he would work. For comparison, Dhanasar 
includes the following discussion of an individual's proposed teaching activities: 
3 
While STEM teaching has substantial merit in relation to U.S. educational interests, the 
record does not indicate by a preponderance of the evidence that the petitioner would 
be engaged in activities that would impact the field of STEM education more broadly. 
Accordingly ... the petitioner has not established by a preponderance of the evidence 
that his proposed teaching activities meet the "national importance" element of the first 
prong of the new framework. 
Matter of Dhanasar, 26 I&N Dec. at 893. Similar reasoning applies here. Just as a teacher has a 
limited number of students, so does a physician serve a limited number of patients. Statistics about 
the aggregate impact of all physicians do not specifically show that the work of any one single 
physician has national importance. Likewise, information about the impact of the COVID-19 
pandemic does not show how the Petitioner's impact on that pandemic would extend beyond treatment 
of individual patients. 
Medical research can have national importance, but the Petitioner's initial submission provided few 
specific details about his research plans. The initial submission heavily emphasized the Petitioner's 
intention to practice medicine. A 15-page introductory brief focused largely on providing medical 
care to underserved or underinsured populations. The section of the brief dedicated to the first 
Dhanasar prong indicates that the Petitioner's "work seeks to expand the field of Pathology both in 
research and personnel." The brief does not elaborate or explain, turning instead to a longer discussion 
of "healthcare in rural areas." 
The initial submission included two letters designated as "expert opinion letters," both of which 
focused heavily on the Petitioner's clinical practice of medicine. One of these two letters discusses 
research only briefly, stating: "His knowledge of anatomy, physiology, and pathophysiology would 
vastly contribute to the research setting. By assisting in the preparation of the laboratory and 
experiments, he will mentor and train undergraduate students, thereby contributing to the workforce." 
The other letter does not address the issue of research at all. 
The Petitioner submitted five other letters from individuals who know the Petitioner, primarily through 
studying or working with him. Several of these individuals offered the general assertion that the 
Petitioner would be well-suited for research, but they provided no details about that research. 
The 26-page business plan submitted with the petition includes three sentences about the possibility 
that the Petitioner would engage in research. The section of the business plan dedicated specifically 
to the issue of the Petitioner's "National-Level Impact" consists of statistics relating to physician 
shortages, COVID-19, health insurance, and other issues. 
Given the evidence submitted with the initial filing of the petition, we do not conclude that research 
was a major component of the proposed endeavor at the time of filing. Instead, the evidence included 
almost incidental discussion of research as being one of several avenues that the Petitioner might 
choose to pursue beyond his clinical practice. 
The Petitioner's brief statement in response to the RFE provided more information about his research 
plans, but he did not show that these plans were in place nine months earlier when he filed the petition. 
A petitioner must meet all eligibility requirements at the time of filing. See 8 C.F.R. § 103 .2(b)(1 ). A 
4 
petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). The emphasis on research appeared only after the Director advised the 
Petitioner that practicing medicine in a shortage area is not a basis for granting the national interest 
waiver under Dhanasar because separate, dedicated provisions exist for physicians intending to 
practice in those areas. 
For the above reasons, we disagree with the Director's conclusion that the Petitioner has established 
the national importance of the proposed endeavor. But because the Director had granted the first prong 
of the Dhanasar framework, below we will consider the Petitioner's arguments and evidence 
concerning the second prong. 
C. Well Positioned to Advance the Proposed Endeavor 
The second Dhanasar prong shifts the focus from the proposed endeavor to the individual. To 
determine whether an individual is 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. Matter ofDhanasar, 26 I&N Dec. at 890. 
In denying the petition, the Director stated: 
[T]he petitioner has not substantiated how his specific education, trammg, 
memberships, and work experience in the medical field as a primary care physician and 
researcher has served as an impetus for progress in the field, that it has affected the 
field, or that it has generated substantial positive discourse in the broader medical and 
research community. Nor does the evidence otherwise demonstrate that his work 
constitutes a record of success or progress in his area of expertise. 
On appeal, the Petitioner asserts that the Director relied on incorrect standards, because Dhanasar 
does not mention "an impetus for progress in the field" or "substantial positive discourse." While 
these specific phrases do not appear in Matter of Dhanasar, Dhanasar references reliance on an 
individual's "record of success," "progress toward achieving the proposed endeavor; and the interest 
of ... relevant entities or individuals." An individual whose endeavor does not drive progress in the 
field and which has not attracted positive commentary would likely have difficulty establishing that 
they are well positioned in accordance with Dhanasar. 
The Petitioner also states that, in the RFE, the Director only requested evidence regarding a "perceived 
lack of a record of success or progress," leading the Petitioner to assume that no further evidence was 
required "to demonstrate that the Petitioner had an actionable plan for future activities" and "interest 
from relevant entities in the endeavor itself" The Petitioner states that the omission of these factors 
from the RFE deprived the Petitioner of the opportunity to complete the record. 
In the RFE, the Director did not state that the Petitioner had established "an actionable plan" or 
established "interest from relevant entities." The Director stated: 
5 
The beneficiary's education, experience and skill sets, and accomplishments are 
insufficient to demonstrate that he is well positioned to advance his proposed endeavor. 
... The evidence does not reflect that the Beneficiary's work constitutes a record of 
success or progress in related or similar efforts, or is otherwise well positioned to 
advance his endeavor. 
The Director also listed several suggested types of evidence that the Petitioner could submit to 
establish "[a] model or plan for future activities," and "[t]he interest of potential customers, users, 
investors, or other relevant entities or individuals." In contrast, when the Director stated that the 
Petitioner had established the substantial merit of the proposed endeavor, the Director did not list the 
suggested or required evidence in that regard. 
For the reasons discussed below, we agree with the Director that the Petitioner has not established that 
he is well positioned to advance the proposed endeavor. 
The evidence that the Petitioner submitted in attempt to meet the second Dhanasar prong leans heavily 
toward his qualifications to practice medicine, rather than to conduct medical research. We have 
already explained, above, that the Petitioner has not shown the national importance of his planned 
clinical practice, and that a physician seeking a national interest waiver to practice medicine in an 
underserved area must follow a statutory and regulatory framework independent of Dhanasar. 
Therefore we need not discuss how the Petitioner's proposed medical practice fares under the second 
and third prongs of the Dhanasar national interest framework. 
The USCIS Policy Manual states that a petitioner may rely, in part, on "[l]etters from experts in the 
person's field, describing the person's past achievements and providing specific examples of how the 
person is well positioned to advance the person's endeavor." See generally 6 USCIS Policy Manual, 
supra, at F.5(D)( I). As noted above, the Petitioner specifically referred to two of the submitted letters 
as "expert opinion letters." Both of the identified experts are assistant professors at medical schools. 
One of them trained in pharmacy; the other holds degrees in microbiology, viral immunology, 
pharmacology, and neuroscience. The two identified expert opinion letters do not discuss the 
Petitioner's research plans in any depth, and they do not indicate that he is well positioned to advance 
the research element of his proposed endeavor. 
Below, we will explain why the Petitioner has not established that he is well positioned to advance the 
research portion of his proposed endeavor, in the context of the four non-exclusive factors listed in 
Matter ofDhanasar, 26 I&N Dec. at 890. 
The first specified factor is "the individual's education, skills, knowledge and record of success in 
related or similar efforts." Here, the Petitioner did not claim any research experience at the time he 
filed the petition. He contended that his "degree and medical expertise" made him "better qualified 
and experienced than a graduate with a bachelor's degree in science," but he did not provide 
documentary evidence showing that his existing education and experience qualified him for a research 
position. Instead, he stated: 
6 
I have started the process to obtain an additional master's degree or a Ph.D. in the 
Cellular/Medical Biology field. . . . I am currently in the process of enrolling for a 
master's degree in physiological science at the University of I I South 
Africa. This would allow me to gain research experience .... These invaluable skills 
would further enable me to pursue a Ph.D. degree at a US university. 
Letters from the Petitioner's colleagues, submitted at the time of filing, stated that the Petitioner 
"would also be a perfect candidate for a research position in the medical field" because "[p ]hysicians 
are perfectly suited for biomedical research." But, consistent with the Petitioner's own statement, they 
also indicated that the Petitioner would need to pursue additional graduate degrees in order to perform 
that research. 
The Petitioner submitted documentation from I I University confoming his registration for 
a master's degree program in physiological sciences, listing classes beginning in November 2021. The 
resume and business plan submitted with the petition both list the Petitioner's educational credentials, 
and neither of those documents indicates that he had taken completed any coursework toward that 
master's degree. 
Months later, in response to the RFE, the Petitioner indicated that he had begun conducting research, 
and stated: "I plan to pursue a Ph.D. degree in the field of Biomedical Science." Even with the 
progress that had occurred after the filing date, the Petitioner acknowledged that he would need to 
pursue another degree program in the future. 
Dhanasar permits us to consider an individual's existing "education, skills, [and] knowledge" when 
evaluating the proposed endeavor at the time of filing. Matter ofDhanasar, 26 I&N Dec. at 890. The 
Petitioner's need to pursue further education shows that he was not well positioned to pursue a 
proposed endeavor in research when he filed the petition. 
In his response to the RFE, the Petitioner described his "recent research," and stated that an "article 
associated with this research is currently being reviewed by the Journal of eBiomedicine." The 
Petitioner did not submit any documentary evidence to corroborate this claim. Unsubstantiated claims 
are not sufficient to meet the petitioner's burden of proof. See generally 6 USCIS Policy Manual, 
supra, at F.5(D)(l ). Furthermore, at the time he filed the petition, the Petitioner did not claim to have 
conducted any medical research or to have submitted a manuscript for publication. Any experience 
or education that the Petitioner gained after the September 2021 filing date cannot retroactively 
establish eligibility at the time of filing. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971 ). 
The record does not establish that, at the time he filed the petition, the Petitioner had the necessary 
education or experience for him to be well positioned to conduct the medical research integral to his 
proposed endeavor. 
With respect to a model or plan for future activities, we have already shown that the Petitioner's 
proposed endeavor, at the time of filing, included several alternative trajectories. The most detailed 
information was in a business plan that was largely limited to describing the Petitioner's intended 
medical practice. Statements from the Petitioner and others speculated about research, consulting for 
7 
the pharmaceutical industry, classroom instruction, and other possibilities. The Petitioner's response 
to the RFE included a more focused discussion of the proposed endeavor, concerning a specific area 
of research that the Petitioner did not mention in his initial filing. 
As a result, the Petitioner has not shown that he had a specific model or plan for future activities at the 
time of filing. 
We tum now to the Petitioner's progress towards achieving the proposed endeavor. The Petitioner's 
initial submission did not show that he had taken any concrete steps toward obtaining licensure to 
practice in the United States; he referred only to his intentions to do so. 
In the denial notice, the Director stated that the Petitioner's "medical practice in South Africa does not 
show progress towards achieving his proposed endeavor in the United States." On appeal, the 
Petitioner interprets this sentence to mean that the Director refused to consider the Petitioner's existing 
medical practice because it is in South Africa rather than the United States. We agree with the 
Petitioner that progress outside the United States warrants consideration, but we do not share the 
Petitioner's interpretation of the quoted passage from the denial notice. 
The Director's comment related specifically to the Petitioner's submission, in response to the RFE, of 
financial documentation relating to the Petitioner's medical practice. While the Petitioner's years of 
experience operating a medical practice speak to his overall credentials, we agree with the Director 
that the Petitioner's establishment of a medical practice in South Africa does not represent progress 
toward the proposed endeavor. His practice abroad does not show progress toward either establishing 
a practice in the United States or engaging in research. 
As stated above, the Petitioner did not initially claim to have conducted any medical research; his 
progress in this regard was evidently limited to enrolling in a master's program. The Petitioner's 
response to the RFE included information about research he had undertaken, but he submitted no 
evidence to show that this research was underway at the time he filed the petition. 
The record, therefore, does not indicate that the Petitioner had made progress toward advancing the 
research element of his proposed endeavor as of the filing date, and the Petitioner cites no such 
evidence on appeal. 
The last specified factor regarding the second Dhanasar prong concerns the interest of potential 
customers, users, investors, or other relevant entities or individuals. 
The Petitioner cited only one piece of evidence in this regard. The Petitioner stated: 
My knowledge of anatomy, physiology and pathophysiology would be very 
advantageous in the research setting. I would be able to assist with the daily preparation 
of the laboratory and the experiments. . . . I would easily be able to assist other 
physicians, based at academic hospitals, with their research for example evaluating the 
impact of a new drug on cardiac function during echocardiography. 
8 
I have already received interest in this type of work [from] the ....I ____.I University of 
I Idue to my qualification. 
From the structure of the first quoted paragraph, we cannot determine the specific "type of work" the 
Petitioner meant in the second paragraph. 
To con-oborate his claim, the Petitioner submitted email printouts showing that the Petitioner contacted 
I lin March 2020, stating: 
I am a qualified family physician ... interested in pursuing a different career path. I 
would be honored if I could be considered for a job opportunity in a research setting. 
. . . Unfmiunately, cunently I do not have any experience in a lab environment. . . . I 
am willing to attend any courses necessary to obtain the skills required for the job 
opportunity. 
I am hopeful that the research and laboratory experience would perhaps allow me to 
pursue a Ph.D. at the University in the future. 
Would you perhaps be able to assist me with some guidance in regards to which 
research opportunities I might be able to apply for at the University? 
Preferably in the Medical or Molecular and Cellular (Tissue) Biology fields. 
In response, I I asked the Petitioner for "proof of [his] legal right to work in the U.S. without 
sponsorship." The Petitioner answered that he "will unfortunately require sponsorship." I I 
responded: "Due to our accreditation status, we are not able to sponsor work visas. We hope to have 
that opportunity in the future. Please keep a watch on our website for future developments." I I 
response came from its Human Resources Department, not from any academic department or research 
laboratory. I lconespondence did not include any discussion of job opportunities, specific 
projects, or the Petitioner's work. 
In the denial notice, the Director stated: "The human [resources] representative did not confirm 
moving forward with employing the petitioner in a research or any other position. Therefore, the email 
is not sufficient evidence to show interest from relevant entities." 
On appeal, the Petitioner states that the Director's failure to raise this issue in the RFE "robbed the 
Petitioner of the actionable ability to rectify any perceived issue or discrepancy." The Petitioner does 
not identify any information or submit any evidence that he would have submitted if the Director had 
raised the issue in the RFE. 
In that RFE, the Director did not state that the Petitioner had established the interest of potential 
customers, users, investors, or other relevant entities or individuals. The Director stated that the 
Petitioner could establish such interest by submitting "[l]etters from a government entity,""[ e ]vidence 
that the beneficiary has received investment from U.S. investors" or "awards, grants, or other 
indications of relevant non-monetary support ... from Federal, State, or local government entities," 
and "[e]vidence demonstrating how the beneficiary's work is being used by others." The Petitioner 
9 
I 
has not shown that the email communication with._l_____,I Human Resources Department fits any of 
these descriptions or has comparable evidentiary weight. 
The Petitioner observes that "the email exchange ... did not stipulate that j Iwas not interested 
in the endeavor, but merely that they were unable to hire the Petitioner at that time." The burden of 
proof is on the Petitioner to affirmatively demonstrate eligibility. The limited scope of I 
conespondence does not create a presumption thatl Iwould otherwise have hired the Petitioner. 
There is no indication that I lhad any knowledge of the Petitioner's background or credentials 
apart from his self-description in the first message, in which he acknowledged that he had no research 
experience and may require further training in order to be eligible for a research position. 
By way of comparison, the petitioner in Dhanasar "submitted detailed expert letters describing U.S. 
Government interest and investment in his research, and the record includes documentation that the 
petitioner played a significant role in projects funded by grants from" several federal government 
agencies. Matter ofDhanasar, 26 I&N Dec. at 892. 
The Petitioner has not established interest in his proposed endeavor of the type contemplated in 
Dhanasar. 
For the reasons discussed above, we agree with the Director that the Petitioner has not met the second 
prong of the Dhanasar national interest framework. The Director also concluded that the Petitioner 
had not met the third Dhanasar prong, but detailed discussion of that remaining prong cannot change 
the outcome of this appeal. Therefore, we reserve argument on the third prong. 3 
III. CONCLUSION 
We agree with the Director that the Petitioner has not established that he is well positioned to advance 
the proposed endeavor. Therefore, the Petitioner has not shown eligibility for the national interest 
waiver, and we will dismiss the appeal as a matter of discretion. 
ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-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).