dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 11934 785 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physician and surgeon, 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 Texas Service Center denied the petition, concluding that the Petitioner qualifies 
for classification as a member of the professions holding an advanced degree, but that she 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, 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. No. 17-16579, 2019 WL 4051593 (Aug. 28, 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. 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 entered the United States in February 2018 as a B-2 nonimmigrant visitor. When she 
filed the petition three months later, the Petitioner did not claim employment or e~?oymentl 
authorization in the United States. All of her claimed employment experience was in her nati 
After she filed the petition, she became a research assistant at thel I Clinic o 
Florida. 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. 4 
On Part 6 of the petition form, the Petitioner lists her job title as "Medical Research," but she also 
provides a job description and Standard Occupational Classification (SOC) Code (29-1071) that 
correspond to physician assistants. The introductory letter submitted with the petition calls her "a 
professional working as a Physician and Surgeon," but also refers to "her approximately 6 years of 
work experience as a Nurse," and states that she will serve the national interest "[i]n her role as a 
Medical Researcher." The Petitioner claims no prior experience conducting medical research (as 
opposed to practicing clinical medicine). 5 
Initially, the Petitioner stated that her proposed endeavor was to conduct medical research, but she 
provided no details about the proposed endeavor. Her initial statement consisted largely of a generic 
job description for medical researchers. A credential evaluation submitted with the petition indicated 
that, given "the business environment i~ I "it is critical for U.S. companies doing business or 
planning to do business there to benefit from the expertise of a Physician and Surgeon such as" the 
Petitioner. The evaluator states that the Petitioner should have the opportunity "to work for companies 
doing business inl I' but the Petitioner claims no such plans in her own statement and the record 
does not otherwise refer to what the evaluator deems the primary reason for approving the waiver. 
In response to a request for evidence, the Petitioner significantly revised her stated plans. The 
Petitioner lists the following goals: 
• Attain licensure and board certification in._l ___ _.I surgery; 
2 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
3 The Petitioner holds a medical degree from thd..._ _____ ___,, _______ __. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
5 We note that graduates of foreign medical schools who intend to practice medicine in the United States are subject to 
additional admissibility requirements under section 212(a)(5)(B) of the Act, 8 U.S.C. § l l 82(a)(5)(B). The approval of a 
national interest waiver would not exempt a foreign national physician from these admissibility requirements. 
3 
• Undertake "a Research Fellowship Program inl I Surgery"; 
• Practice medicine "in a large hospital" as a surgeon while also conducting research; and 
• Acquire a faculty position as "an assistant professor of General Surgery." 
The Petitioner's revised statement contains considerably more detail about what she intends to do in 
the United States, but it also contradicts the initial statement by significantly changing the emphasis 
from research to clinical practice. The Petitioner maintains that she still seeks to pursue research, but 
she provides considerably less information about this facet of her intended career. This is an important 
point because it bears directly on the issue of the national importance of the proposed endeavor. 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. The same 
reasoning applies here. A surgeon's direct impact is largely limited to the small number of patients 
she treats. The Petitioner shows thatl ~ causes over 50,000 deaths in the United States 
each year, but one doctor's clinical practice will not have a significant effect on those numbers. A 
faculty position at a medical school, likewise, has a limited reach because a professor can only instruct 
a finite number of students, each of whom is also under the tutelage of several other instructors. 
Medical research can be of national importance through publication and dissemination. But to qualify 
for the waiver, the Petitioner must do more than show that medical research is important and that she 
intends to pursue that research while also continuing to practice medicine. Such generalities provide 
no information about the research she would undertake, or how much time she would be able to devote 
to research while also treating patients and teaching medical students. A vaguely-stated intention to 
conduct medical research, to which the Petitioner later added detailed plans regarding clinical practice 
that are more in keeping with her education and experience, does not suffice to establish that her 
proposed endeavor has national importance. 
The Petitioner has submitted several reference letters, all emphasizing her clinical work as a physician 
and surgeon rather than expertise or significant experience as a researcher. For example, an October 
2019 letter from the medical director ofl I Hospital lists 18 tasks the Petitioner 
performed there from March 2013 to October 2018. One task ambiguously refers to "[s]cientific 
interest in the publication of papers in congresses and international publication," but the letter does 
not indicate that the Petitioner engaged in focused research activity ( as opposed to routine reporting 
of clinical outcomes from patient treatment). The Petitioner has produced some papers and conference 
presentations, but mostly while she was a student, and many of these projects appear to be case studies, 
in which physicians report the details and outcome of patient treatment. 
The Petitioner also co-authored a textbook chapter aboutl I The submitted excerpt is in 
Portuguese with no English translation, so we can make no conclusions about its contents. See 
8 C.F.R. § 103.3(b)(3), which requires the submission of certified English translations of foreign­
language documents. 
The Director concluded that the Petitioner did not establish the national importance of her proposed 
endeavor. On appeal, the Petitioner asserts that her "endeavor aims to actively apply her medical and 
public health expertise in the research and development of new medical breakthroughs ... while helping 
in the treatment of patients." As explained above, the Petitioner has provided minimal information about 
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her planned research endeavor, and has made conflicting claims about how the research work will 
predominate in her future work. 
Also, the treatment of individual patients does not rise to the level of national importance. The collective 
importance of a given profession is not grounds for a national interest waiver; Congress could have 
created blanket waivers for particular occupations, but did not do so. 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. The vague ambition to "develop ... new medical 
breakthroughs" does not satisfy this prong of the Dhanasar test. 
Because this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the 
appellate arguments regarding 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 of L-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). 
Nevertheless, one point bears addressing here. The Petitioner asserts that there is a shortage of 
physicians and medical researchers in the United States, and she submits a number of published articles 
advocating increased immigration in order to address those shortages. This argument is not 
persuasive. 
The Petitioner has acknowledged that any medical research she may conduct would be through an 
employer, and therefore involving an employer in the immigration process does not represent an 
unreasonable burden that prevents the Petitioner from benefiting the United States through her 
research. Without such an employer, it is not evident that the Petitioner would be able to engage in 
research at all. Granting the Petitioner a national interest waiver now, in the hopes that she would one 
day secure employment as a researcher with an as-yet-unknown employer, would be highly 
speculative. 
With regard to physician shortages, Congress established separate waiver prov1s10ns at section 
203(b)(2)(B)(ii) of the Act for physicians who agree to work in an area designated by the Secretary of 
Health and Human Services as having a shortage of health care professionals or at a health care facility 
under the jurisdiction of the Secretary of Veterans Affairs. USCIS adjudicates those petitions outside 
the Dhanasar framework under the regulations at 8 C.F.R. § 204.12, which outline additional 
evidentiary requirements that this Petitioner has not addressed or met. Therefore, we decline to 
address the assertion that a shortage of physicians entitles the Petitioner to a waiver under the 
Dhanasar standard. 
The record portrays the Petitioner as a dedicated, diligent, and competent physician and surgeon, but 
these traits do not exempt her from the job offer requirement that, by law, typically applies to the 
immigrant classification that she seeks. 
III. CONCLUSION 
5 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framework, we 
conclude that she 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. 
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