dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 15470910 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUNE 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physician, seeks classification as a member of the professions holding an advanced 
degree and as an individual of exceptional ability in the sciences, arts, or business . 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 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 Petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that he had 
not established that a waiver of the required job offer, and thus of the labor certification, would be in 
the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 ofjob 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. 
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). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as matter of discretion, 1 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 offer and thus of a labor certification. 
The first prong, regarding 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, users 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 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 foreign 
1 See also Poursina v. USC1S. 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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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. 2 
II. ANALYSIS 
The record demonstrates that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 3 Therefore, we need not consider the alternative claim of exceptional ability in the sciences, arts, 
or business. 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. 
The Petitioner practiced medicine in Brazil from 2009 to 2017, also briefly serving as a professor at a 
medical school in 2016. After traveling to Canada, the Petitioner entered the United States in 2018 as 
the spouse of an F-1 nonimmigrant student. Although the Petitioner's past employment was as a 
physician specializing in) I he specifies on the petition form that he seeks employment as a 
"medical scientist" who will "[ c ]onduct research dealing with the understanding of human diseases 
and the improvement of human health." As outlined below, we agree with the Director that the Petitioner 
has not sufficiently demonstrated eligibility for a national interest waiver under the Dhanasar analytical 
framework. 
The Director concluded that the Petitioner met the first prong of the Dhanasar framework, relating to 
substantial merit and national importance. We need not revisit this conclusion here. The Director also 
concluded that the Petitioner did not satisfy the second or third prongs. 
As explained below, we agree with the Director's conclusion that the Petitioner did not establish that 
he is well positioned to advance the proposed endeavor. 
The Petitioner states that he: 
intends to advance his career as a Medical Scientist i~ I by conducting 
research and engaging in clinical investigations to better understand and treat disease 
to improve overall human health, medicine and healthcare and also by identifying any 
opportunities for business to use the extensive research to support the U.S. healthcare 
sector and the national interest. 
The Petitioner claims no prior experience as a medical scientist who conducts research. Rather, he 
"has worked as a Physician and! I for large hospitals as well as a Teacher of Medicine in 
Brazil," and asserts: "Based on his extensive experience in the medical field he] is well positioned 
to advance his proposed endeavor to work as a Medical Scientist i ,__ ___ _," 
The Petitioner's "Professional Plan & Statement" describes his experience as a practitioner but does 
not explain how this experience would translate into medical research. He asserts: 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner earned a medical degree froI111 I Universid I, Brazil, in 2006. 
3 
I will be able to: 
• Perform research for the prevention and treatment of human disease, especially 
I !health; 
• Develop treatments and medicine to improve human health; 
• Conduct and design clinical studies, prepare and analyze medical samples and data; 
• Write technical reports on research findings; 
• Create, test and standardize medicine, medical devices and equipment; 
• Coordinate quality care services and ensure patient safety and legal compliance; 
• Negotiate medicinal and healthcare costs to increase revenue and reduce losses; 
• Train, guide, and supervise aspiring medical and health services professionals; 
• Promote public health management, organization, operations and control of 
practices related to all aspects of medical care; and 
• Create American jobs and generate U.S. tax revenue. 
The above list appears to be an aggregation of tasks from a variety of occupations, rather than 
responsibilities specific to medical research. For instance, the Petitioner has not identified any one 
specific occupation that entails both negotiating health care costs and creating medical devices. More 
importantly, the Petitioner does not explain how his background has well positioned him to perform 
those tasks. 
A separate introductory statement includes a rather different list: 
As a Medical Scientist ... he will be able to: 
• Improve medical I I research, quality assurance, regulatory compliance and 
medical technology; 
• Conduct medical research and lead teams of scientists and medical technicians in 
this endeavor to contribute to advances in medical research, medicine, and medical 
technology id I; 
• Design and implement clinical trials, draft study synopses, methodologies, collect 
and analyze data, publish and present significant findings and publish research to 
advance public health, in diagnosing, treating, and curing disease; 
• Draft research grants, seek funding and form collaborations with medical 
companies, organizations and institutions; and 
• Edit, publish and present scientific publications and present medical research at 
scientific conferences and consortiums. 
The Petitioner does not cite any evidence that he has any prior experience in any of the listed areas. 
Medical practice and medical research are related but distinct fields of endeavor, and experience in 
one of those fields does not convey or imply expertise in the other. The Petitioner articulates no 
specific plans about his intended research, relying instead on general information about such research. 
The Petitioner states that "several other professionals ... have written testimonial letters that attest to 
[the Petitioner's] unique expertise." These letters, and the Petitioner's own resume, do not indicate 
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that the Petitioner has any prior experience in medical research. The writers of the letters attest to the 
Petitioner's skill as a physician, and describe his experience in varying degrees of detail, but they show 
no awareness of the Petitioner's plans to pursue research rather than medical practice. 
In a request for evidence, the Director informed the Petitioner that the initial submission does not 
establish that the Petitioner is well positioned to work as a medical researcher. We note that, in this 
notice, the Director did not instruct the Petitioner to change his proposed endeavor or indicate that any 
such change would be accepted. 
In response, the Petitioner has submitted a new "Professional Plan & Statement," outlining a proposed 
endeavor very different from the medical research described initially. In his revised plan, the 
Petitioner states that he will practice medicine, "focusing on Emergency Medicine, Intensive Care 
Medicine, Clinical Medicine, and I I in particular." The Petitioner also asserts that he is 
pursuing board certification and has begun taking the required examinations to qualify for licensure 
in the United States. The Petitioner does not mention his previous plan to engage in medical research 
or explain why he apparently abandoned that plan. 
The Petitioner's response also includes email printouts showing that in April 2020, ten months after 
he filed the petition, he inquired about various employment opportunities with various medical 
practices, hospitals, and staffing agencies. 
In denying the petition, the Director determined that letters attesting to the Petitioner's abilities as a 
I I "do not establish ... a record of success as a researcher," and that the Petitioner had not 
shown "any plans, progress, financial support or other . . . commitments to drive the endeavor 
forward." The Director also noted that the evidence regarding the Petitioner's plan to practice 
medicine in the United States dates from after the petition's June 2019 filing date. 
On appeal, the Petitioner asserts that the Director erred because the Petitioner is, by virtue of his 
"exceptional and diverse expertise," well positioned to advance the proposed endeavor. The appellate 
brief does not discuss the proposed endeavor in much detail or acknowledge the submission of two 
quite different proposed endeavors. 
At the time of filing, the Petitioner's proposed endeavor focused on medical research, an area in which 
the Petitioner does not appear to have any experience or specialized training. We conclude that the 
Petitioner is not well positioned to advance the proposed endeavor described in the initial filing. 
The second version of the proposed endeavor was not part of the initial filing. The Petitioner must 
meet eligibility requirements at the time of filing. 8 C.F.R. § 103.2(b )(1 ). Furthermore, a 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 of Izummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). Here, the substitution of the Petitioner's proposed endeavor was not merely a minor 
revision to add clarity or detail. Rather, it represents a major material change, from one occupation 
(medical researcher) to another (physician). 4 
4 To accept this alteration would be to consider the initial filing as a mere placeholder, securing a priority date before the 
Petitioner makes a final decision about his proposed endeavor. 
5 
For the above reasons, the Petitioner has not established that he is well positioned to advance the 
proposed endeavor as described in the initial filing of the petition. 
In light of the above conclusions, detailed discussion of the third Dhanasar prong cannot change the 
outcome of this appeal. Therefore, we reserve this issue. 5 
III. CONCLUSION 
Because the Petitioner has not met the required second prong of the Dhanasar analytical framework, we 
conclude that he has not established eligibility for a national interest waiver as a matter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
5 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 of L-A-C-, 26 l&N Dec. 516, 526 
n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). Although we 
reserve the issue, we briefly note that the Petitioner's third prong arguments rely heavily on information regarding a 
shortage of U.S. physicians (even in the initial submission, when the Petitioner did not yet claim that he seeks to practice 
medicine in the United States). Section 203(b)(2)(B)(ii) of the Act provides for shortage-based waivers under certain 
conditions, and the regulations at 8 C.F.R. § 204.12 outline the process by which a physician can qualify for the waiver 
based on such a shortage. Here, however, the Petitioner has not followed that process or attempted to meet the requirements 
specified therein. The Petitioner cannot sidestep these statutory and regulatory requirements and, instead, seek a shortage­
based waiver under the Dhanasar framework. Dhanasar does not provide for shortage-based waivers, because the labor 
certification process is the means by which the Department of Labor confirms the unavailability of qualified U.S. workers. 
Information that would tend to favor approval of a labor certification does not make that labor certification moot. 
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