dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 26, 2023 In Re: 27490116 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree and an individual of exceptional ability, as 
well as a national interest waiver of the job offer requirement attached to this classification. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Petition was initially denied by the Director of the Texas Service Center, who concluded that the 
Petitioner was not eligible for, and did not merit as a matter of discretion, a national interest waiver. 
The Petitioner appealed this decision, and we remanded the matter back to the Director with 
instructions to consider the Petitioner's eligibility for the EB-2 classification as well as whether the 
Petitioner had made an impermissible material change to the petition when responding to the 
Director's request for evidence (RFE). After issuing a notice of intent to deny (NOID) and considering 
the Petitioner's response, the Director again denied the petition, concluding that the record did not 
establish that the Petitioner is eligible for the EB-2 immigrant classification as either an advanced 
degree professional or an individual of exceptional ability. In addition, they determined that the 
Petitioner is not eligible for, and does not merit as a matter of discretion, a 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 afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/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. Section 203(b )(2)(B)(i) of the Act. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 3, grant a national interest waiver if 
the petitioner demonstrates that: 
• 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. EB-2 CLASSIFICATION 
The Petitioner submitted translated copies of her diplomas, certificates, and transcripts, as well as an 
educational evaluation. In their decision, the Director determined that the record supported the 
evaluation's conclusion that the Petitioner's Title of Physician degree is equivalent to a bachelor's 
degree in medicine from an accredited university in the United States. However, they also concluded 
that the certificates that the evaluation found to be equivalent to master's degree in obstetrics, 
gynecology, and basic family health care appeared to be training classes, and that none of them were 
equivalent to an advanced degree above that of baccalaureate from an accredited institution in the 
United States. 
As noted above, the regulation states that eligibility as an advanced degree professional may be shown 
if a petitioner is a member of the professions with a bachelor's degree and five years of post-degree 
experience in their specialty. Although the Director did not consider this evidence in their evaluation 
of the Petitioner's eligibility as a member of the professions holding an advanced degree, the record 
includes two statements from the Petitioner's former employers in the municipality ofl lin 
Brazil that she was employed as a physician for more than five years after completing her degree. We 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 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 discretionmy in nature). 
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conclude that she has established her eligibility as a member of the professions holding an advanced 
degree, and thus for the EB-2 classification, and vacate the Director's decision in that regard. 
III. NATIONAL INTEREST W AIYER 
As stated above, Dhanasar sets forth a framework for analyzing eligibility for a national interest 
waiver, and a key part of that analysis is the identification of the specific endeavor that a petitioner 
proposes to undertake. In our earlier decision in which we remanded this matter to the Director 
following the Petitioner's first appeal, we pointed out that the Petitioner initially described her 
proposed endeavor as "Physician Researcher," which would include such duties as "developing and 
conducting relevant medical research" and "engaging in clinical investigations." However, in 
response to the Director's RFE, she had submitted a new statement in which she stated that she would 
work as a nurse practitioner and nurse midwife, providing medical care to patients at doctor's offices 
or hospitals. While the Petitioner mentioned research in this new statement, she was referring to her 
own review of the latest medical practices to prepare her to best provide medical care, not the sort of 
studies and laboratory work she had previously referenced. We noted that the Petitioner had not 
clarified her proposed endeavor, but had instead attempted to make changes to a key part of her petition 
that are not permissible. See Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1998)(finding that a 
petitioner may not make material changes to a petition that has already been filed to make an 
apparently deficient petition conform to USCIS requirements). 
Per our remand, the Director issued a NOID in which they noted that the conflicting descriptions of 
the Petitioner's proposed endeavor left her intentions unclear. The Petitioner responded by 
introducing yet another proposed endeavor which involves her both providing medical care as a 
gynecologist and managing and developing her own business,! IWhile 
this new evidence included a business plan for the proposed "primary care clinic and research center," 
it does not specify how the Petitioner intends to divide her time between providing general and 
gynecological care and managing and developing her business. In addition, although the evidence 
briefly mentions research and clinical trials, it does not include details regarding any research activities 
in which the Petitioner would potentially be engaged. 
The purpose of a NOID is to notify a petitioner ofUSCIS' intent to deny a benefit request and explain 
the reasons for that, and to allow for a limited period for response, which may include additional 
evidence. 8 C.F.R. §§ 103.2(b)(8) and (11). Here, the Petitioner's initial description of her proposed 
endeavor did not include plans to form her own company as an entrepreneur or managing that 
company. The Petitioner has not shown that conducting medical research and forming and managing 
her own company are the same endeavor. Again, a petitioner may not make material changes to a 
petition that has already been filed to make an apparently deficient petition conform to USCIS 
requirements. lzummi, 22 I&N Dec. at 175. 
It appears the Petitioner sought to address ours and the Director's concerns regarding her lack of 
specificity in her original proposed endeavor, but in so doing, she has significantly changed that 
proposed endeavor, now offering a third iteration that significantly departs from the original. 
Accordingly, we conclude that the focus of her endeavor, which appeared to largely involve medical 
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research, has now significantly changed to include entrepreneurialism and management. 4 If significant 
material changes are made to the initial request for approval, a petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. 8 C.F.R. § l 03.2(b )( 1 ). 
For these reasons, the petition may not be approved. 
In addition, even if the Petitioner had submitted her business plan and proposed endeavor to operate 
and manage a clinic while also providing medical care at the time of filing, we agree with the Director's 
conclusion that she has not sufficiently demonstrated the national importance of this endeavor. Much 
like the petitioner's proposed teaching activities in Dhanasar, the Petitioner has not shown that her 
provision of medical services to patients, or even management of a small clinic doing so, would more 
broadly impact the medical field or access to healthcare in the United States. Dhanasar at 893. 
Further, the Petitioner points to the business plan's forecasts regarding job creation, wages, and 
revenue, but we note that these projections are not supported by specific, relevant data and analysis 
concerning the business' potential growth. 
In her appeal brief, the Petitioner repeats many of the same assertions regarding the overall importance 
of the healthcare industry in the United States that she made in responding to the NOID. These include 
general assertions about the need for skilled healthcare professionals, the need for healthcare business 
leaders to consider international expansion and strategic partnerships, the contributions of the life 
sciences community to quality of life, the benefits of medical innovations, and opportunities for 
investment in the Brazilian healthcare market. But it is not the overall importance of a particular field 
or industry that we consider when determining national importance, but the impact of the specific 
endeavor proposed by a petitioner. Dhanasar at 889. Not only is the nature of the Petitioner's 
proposed endeavor unclear, but it is also not apparent how these assertions, and the various media 
articles in the record covering the same or similar topics, relate to the Petitioner's intentions to work 
as a researcher, gynecologist, nurse, midwife, entrepreneur, or manager. 
For the above reasons, the Petitioner has not proposed a specific endeavor that has been shown to be 
of substantial merit and national importance, and she has therefore not met the first prong of the 
Dhanasar analysis and shown that she merits a national interest waiver. Since the identified basis for 
denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's 
appellate arguments regarding the remaining two prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) (stating that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); 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). 
ORDER: The appeal is dismissed. 
4 We note that on appeal, the Petitioner also mentions that her proposed endeavor would be of national importance because 
it would create "new international partnerships," "establish the necessary strnctures to reach foreign markets," and "support 
the increased import and export of medical supplies." None of these activities were mentioned in her business plan. 
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