dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 28, 2023 In Re: 28086564 
Appeal of Texas Service Center Decision 
Form 1-140, 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 153(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. § l l 53(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 qualified 
for classification as a member of the professions holding an advanced degree but 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. 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 a member of the professions holding an advanced 
degree 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. 
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 l&N Dec. 884 (AAO 2016). Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
Initially, the Petitioner provided conflicting descriptions of the proposed endeavor. He referred to it 
as a plan to "finish my diploma validation and start an entrepreneurial medical career ... opening a 
clinic." In contrast, he also described the proposed endeavor as a plan to "act[] on the medical staff 
of a hospital," which indicates the endeavor would not be entrepreneurial in nature and he would not 
open his own clinic. 
In response to the Director's request for evidence (RFE), the Petitioner submitted an undated business 
plan. The business plan describes I Ia proposed startup company to "provide 
a new healthcare solution for low to middle-income families ... inl IFL[, with] subscription 
and 'pay as you go' options." The business plan indicates that the Petitioner's startup company "will 
franchise its business after establishing a strong market presence ... by the end of the second year." 
The business plan farther states, though, that it will establish a strong market presence while 
"remaining lean for the first year of operations to conserve as much cash as possible ... with 3 
specialized employees who have experience operating in this primary care industry." 
We note that the business plan is internally inconsistent regarding material details. For example, the 
chart of payroll expenses for each of the first five years indicates that the company will employ an 
"office manager," an "admin assistant," and a "controller" for each of the five years, adding one 
"assistant" in each of the second, third, and fourth years; however, none of the employees on the 
payroll during the healthcare company's first five years of operation appear to provide healthcare. We 
note that the business plan asserts that the company "will have experienced doctors who are invested 
in the success of the clinic [ and who] will share 60% of the revenue that they help generate." However, 
the business plan does not elaborate on how many doctors will work at the company and the years 
during which the plan expects them to do so. Moreover, although the business plan contains 
anticipated profit and loss for the company's first five years of operation, neither the "direct cost" nor 
the details for the "total operating expenses" deductions, detailed within the business plan, correspond 
to or otherwise include 60% of the revenue allocated to doctors. In addition to omitting allocations of 
60% of the revenue to doctors, the business plan indicates that the company expects net profits of 
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16.78%, 21.71 %, 24.95%, 28.46%, and 33.79% in each of the first five years of operation, 
respectively, indicating that it would not have the ability to pay the doctors 60% of revenue. 
A petitioner must resolve inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. 
The business plan's inconsistencies regarding who would provide healthcare services and how the 
Petitioner's startup company would have the ability to pay those individuals are material to the 
viability of the proposed endeavor-a startup healthcare company. The record does not resolve the 
internally inconsistent information provided in the RFE response business plan with independent, 
objective evidence. Therefore, the reliability and sufficiency of the business plan and other evidence 
submitted in support of the Form 1-140, Immigrant Petition for Alien Workers, is minimized. See id. 
The Director acknowledged that "the proposed endeavor has substantial merit." However, the Director 
concluded that the record "does not support that the [P]etitioner's proposed endeavor is of national 
importance." More specifically, the Director observed that the record "has not ... established that the 
intended contributions will extend beyond the [P]etitioner's company, and [its] clients." The Director 
acknowledged the contents of the business plan but noted that "[t]here is no data provided alongside 
the growth rates to determine how these rates were calculated, or what they mean in the parameters of 
the business plan" or "how hiring up to six employees in an area with a population of over 300,000 
would be considered as having national importance." The Director also acknowledged that "it is very 
likely the [Petitioner's] work would improve the life of their clients" but the Director observed that 
"the petition does not demonstrate that their work would broadly enhance societal welfare." 
On appeal, the Petitioner references his qualifications and prior work experience, he asserts that his 
endeavor "generally does not adversely affect U.S. workers," and he references generalized articles 
about the healthcare industry, including a demand for healthcare services. The Petitioner also submits 
a new business plan, dated 2023. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
First, the Petitioner's focus on appeal on his qualifications and prior work experience with regard to 
the first Dhanasar prong is misplaced. Although an individual's education and prior work experience 
are material to the second Dhanasar prong-whether an individual is well positioned to advance a 
proposed endeavor-they are immaterial to the first Dhanasar prong-whether a particular, 
prospective, proposed endeavor has both substantial merit and national importance. See id. at 888-91. 
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Next, we acknowledge that the Petitioner asserts on appeal that his endeavor "generally does not 
adversely affect U.S. workers." However, whether an endeavor will adversely affect U.S. workers is 
not a factor in determining whether an endeavor will have national importance. In relevant part, 
Dhanasar acknowledged that broader implication of a proposed endeavor may be demonstrated by 
establishing "significant potential to employ U.S. workers or ... other substantial positive economic 
effects, particularly in an economically depressed area." Id. at 889-90. However, whether a proposed 
endeavor has a "significant potential to employ U.S. workers" or it "generally does not adversely affect 
U.S. workers" are separate issues. Moreover, an endeavor that "generally does not adversely affect 
U.S. workers" corresponds to a net neutral economic effect, but it does not articulate a "substantial 
positive economic effect[]." Id. 
Next, the Petitioner's references on appeal to generalized articles regarding the healthcare industry are 
misplaced. As noted above, in determining national importance, the relevant question is not the 
importance of the industry, field, or profession in which an individual will work; instead, to assess 
national importance, we focus on the "specific endeavor that the [noncitizen] proposes to undertake." 
See id. at 889. None of the articles the Petitioner references on appeal address either him or the specific 
endeavor that he proposes to undertake. Therefore, they do not provide information material to 
determining whether the proposed endeavor may have national importance. See id. at 889-90. 
Although the Petitioner submits a new business plan on appeal, it cannot establish eligibility. A 
petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. 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 Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
In addition to being dated 2023, after the petition filing date, the new business plan presents a new set 
of material facts that cannot establish eligibility. See 8 C.F .R. § 103 .2(b )(1 ); Katigbak, 14 I&N Dec. at 
49; Izummi, 22 I&N Dec. at 176. First, rather than asserting that the company will employ only an 
"office manager," an "admin assistant," and a "controller" in the first year, the new business plan states 
that "the company's team will be composed of five highly skilled professionals, including [the 
Petitioner] as the Clinical Director, a [ f]amily [ m Jedi cine [p]hysician, a [p ]hysician assistant, ... a 
[h ]ealth educator[,] and a [ m ]edical [ o ]ffice [ m ]anager to assist ... in handling administrative tasks" 
in the first year. The business plan further asserts that the company will employ 18 workers, rather 
than just six employees, within the first five years of operation, including additional physicians, nurse 
practitioners, physician assistants, registered nurses, mental health counselors, health educators, and 
other support staff. Moreover, rather than indicating that the physicians would "share 60% of the 
revenue that they help generate," the new business plan lists the healthcare providers as payroll 
employees. Additionally, although the original business plan projected franchise income beginning 
in the second year of business, the new business plan asserts instead that the company "plans to extend 
its operations into South Carolina with a second unit ... [a]fter three successful years." Although the 
new business plan contains other material changes, we limit our summarization of its changes here to 
the foregoing, for brevity. 
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The substance of the new business plan, summarized above, is material to the first Dhanasar prong 
because it describes the proposed endeavor, the anticipated scope of its operation, and the workers it 
intends to employ. See Dhanasar, 26 I&N Dec. at 889-90. Because the new business plan, dated after 
the petition filing date, presents a new set of material facts, it cannot establish eligibility, and we need 
not address it farther. See 8 C.F.R. § 103.2(b)(l); Katigbak, 14 I&N Dec. at 49; Izwnmi, 22 I&N 
Dec. at 176. Relatedly, the initial business plan bears minimal probative value for the reasons 
discussed above, and thus it does not establish that the proposed endeavor has national importance. 
See Matter ofHo, 19 I&N Dec. at 591-92; see also Dhanasar, 26 I&N Dec. at 889-90. Furthermore, 
the Petitioner's submission of the new, materially changed business plan indicates that the Petitioner 
no longer intends to pursue the operation of the healthcare facility as described in the initial business 
plan, farther reducing the initial business plan's probative value. Given the extent to which the initial 
business plan's probative value has been reduced, and because the new business plan cannot establish 
eligibility, the record does not sufficiently articulate a viable endeavor whose national importance can 
be assessed. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 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-, 
26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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