dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 18237489 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 04, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a nurse, seeks second preference immigrant classification as an individual of 
exceptional ability in the sciences, arts or business, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2) , 8 U.S.C. § 1153(b)(2). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 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. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Nebraska Service Center denied the petition, concluding that although the 
Petitioner qualifies for the underlying classification , the record did not demonstrate that the proposed 
endeavor has national importance or that the Petitioner is well positioned to advance it. Accordingly, 
the Director determined that the Petitioner had not established eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner submits a brief and reasserts her eligibility, 
arguing that the Director erred in the decision. 
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. LEGAL FRAMEWORK 
To establish eligibility for a national interest waiver , a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), 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 of job 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. 
Section 101 (a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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Furthermore, 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). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
11. ANALYSIS 
As we began reviewing of this record of proceeding, we observed that the individual who filed this 
appeal on behalf of the Petitioner did not appear to be an attorney licensed to practice law in any 
jurisdiction of the United States, as claimed. Though the agency sentthat individual a letter requesting 
that he provide evidence of such licensure, he did not respond. As the record lacks evidence of his 
eligibility to practice law in the United States we cannot recognize him as Counsel, and we will not 
send him a copy of this decision. The Petitioner alone will receive the decision notice. 
The Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record contains evidence that the Petitioner earned a foreign four-year degree 
in nursing in 2008 and has at least five years of professional experience in the nursing and healthcare 
field. The remaining issue to be determined, therefore, 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. 
While we do not discuss each piece of evidence individually, we have reviewed and considered each 
one. 
The Petitioner's proposed endeavor is to enrich U.S. healthcare and improve hospital environments 
by working as a nurse. In support, she provided a personal statement that detailed her work history 
and experience as a nurse in Brazil, numerous recommendation letters from former nursing colleagues 
in Brazil, and a copy of her Florida nursing license. The authors of the recommendation letters praised 
the Petitioner's positive personal qualities and technical abilities as a nurse, as well as provided 
examples of the Petitioner's leadership in various nursing roles. In particular, several authors 
highlighted the Petitioner's experience in public health and obstetrics, as well as described the 
Petitioner's ability to lead teams and provide quality patient care despite demanding and under­
resourced workplace conditions. 
The Director notified the Petitioner through a request for evidence (RFE) that although the field of 
nursing itself is nationally important, this alone is insufficient to establish the national importance of 
the Petitioner's endeavor. Specifically, the Director noted that the Petitioner's proposed endeavor 
would benefit her employer and patients but that the evidence did not establish that her employment 
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as a nurse would be nationally important. In her RFE response, the Petitioner clarified that her 
endeavor is to offer her expertise in order to help fill the gap of qualified nurses in th~ United States. 
She plans to accomplish this by continuing her job as a nurse at the.___ _________ _. 
Hospital in Florida. Her endeavor would also include the longer-term plan of studying to obtain a 
master's degree in midwifery, applying for a doctoral degree program, and in five years, serving as 
the head of the Obstetrics Unit in the hospital where she works or at another healthcare facility. The 
Petitioner claimed that her endeavor impacts the United States because it will provide quality patient 
care, train other nurses on proper techniques and treatments, generate tax revenue, and improve public 
health. While we acknowledge these claims, the Petitioner has not offered sufficient evidence to 
substantiate them. 
In denying the petition, the Director explained that although the Petitioner's endeavor has substantial 
merit, she had not established the national importance of it. Again, the Director noted thatthe endeavor 
stands to benefitthe employing entity and the Petitioner's patients butthatthe evidenced id not support 
a finding of national importance. Additionally, the Director noted that subsequent to her initial filing, 
the Petitioner shifted the focus of her endeavor by including plans to further her education. The 
Director explained that while furthering her education may eventually benefit the proposed endeavor, 
such educational pursuits do not contribute to a finding of national importance. We agree. As the 
following discussion illustrates, the Petitioner's evidence does not establish the national importance 
of her proposed endeavor. 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement, 
we look to evidence documenting the "potential prospective impact" of her work. To illustrate, "[ a]n 
endeavor that has significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area, for instance, may well be understood 
to have national importance." Id. at 890. While her endeavor has substantial merit, the record does 
not establish by a preponderance of the evidence that the Petitioner's patient work would impact the 
field of nursing or the U.S. healthcare industry more broadly, as opposed to being limited to the 
specific patients and workplace she serves. Similarly, 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. 
In order to illustrate the potential impact of her proposed endeavor, the Petitioner pointed to her 
success in the past. We reviewed her personal statement and the letters of recommendation written by 
colleagues in her current workplace in Florida. As with the letters initially submitted, the authors 
praise the Petitioner's abilities as a nurse and the personal attributes that make her an asset to their 
workplace and to the patients she serves. She also provided patient testimonials concerning the quality 
of care she provides them. While all the recommendation letters evidence the high regard the 
Petitioner's colleagues have for the Petitioner and her work, none of the letters offers persuasive detail 
concerning the Petitioner's proposed endeavor or how it would be nationally important. Even if the 
Petitioner replicates her nursing success in the United States through her proposed endeavor, her 
success would still be limited to the patients and employers she serves. As such, the letters are not 
probative of the Petitioner's eligibility under the first prong of Dhanasar. Furthermore, we note that 
the Petitioner's knowledge, skills, education, and experience are considerations under Dhanasar's 
second prong, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. 
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The issue under the first prong is whether the Petitioner has demonstrated the national importance of 
her proposed work. 
The Petitioner submitted an advisory opinion froni I a professor at the I I I I concerning her eligibility for a national interest waiver. I I stated that due to the 
national shortage of healthcare workers, a situation which the COVID-19 pandemic has exacerbated, 
the Petitioner's proposed endeavor is nationally important. Further, he claimed that in addition to 
offering her services on the frontlines of the pandemic, the Petitioner would train other professionals 
in the field to develop their skills and preparedness in the fight against COVID-19. He also noted that 
the Petitioner has the potential to and is qualified to teach and train others in her healthcare methods 
and strategies. Notably, the Petitioner has not explained how much of her time will be spent on 
teaching and training others and how much time she will devote to her clinical nursing activities. 
Furthermore, neithd I nor the Petitioner has explained or identified what the Petitioner's 
methods and strategies are or how they differ from the methods and strategies already used in U.S. 
healthcare facilities. 
We acknowledge bothl I and the Petitioner's claims that the COVID-19 pandemic and a 
pre-existing nursing shortage place the Petitioner's nursing work in high demand. We further 
acknowledge the Petitioner's arguments that healthcare is of vital importance for the nation's quality 
of life as well as an important aspect of the U.S. economy. Nevertheless, these arguments focus on 
the field of nursing and healthcare as a whole, notthe Petitioner's specific proposed endeavor. Neither 
I I nor the Petitioner offered sufficient evidence to address the shortcomings identified by 
the Director concerning the endeavor's benefit to the Petitioner's employer and patients but not the 
nation as a whole. 
The Petitioner has not explained, for instance, how many patients she will treat or how treating those 
patients will have a broader impact on the healthcare field. The Petitioner has not suggested that her 
work will resolve the national nursing shortage, nor has she explained what specific impact her work 
would have on reducing such a shortage. To illustrate with another example, the Petitioner has not 
provided details of how her endeavor will generate tax revenue, an estimate of how much revenue it 
will generate, and whether such revenue would rise to a nationally important level. The Petitioner 
must support her assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 l&N Dec. 369,376 {AAO 2010). Although the Petitioner claimed that her endeavor would fill a 
demand for nurses and generate tax revenue, she has not offered sufficient information or evidence 
regarding any projected impact on the national nursing shortage or U.S. taxes that would be attributable 
to her future work. Likewise, although the Petitioner points out the healthcare industry's importance 
to the economy, the Petitioner has not identified how her specific endeavor contributes to the economy. 
As such, she has not shown that the benefits to the regional or national economy resulting from her 
endeavor would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
Dhanasar 26 l&N Dec. at 890. 
As previously, mentioned, the Petitioner andl I suggested that the Petitioner will impact 
the nursing field through teaching and training others. However, the Petitioner has not provided 
evidence to corroborate that her current or future nursing positions include teaching and training, how 
she will conduct these activities while also carrying out her clinical nursing work, and what methods 
or strategies she offers that are not already a part of the U.S. nursing system. Even if these details 
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were provided, the Petitioner would still need to explain how this work would have a broader impact 
beyond her specific workplace and patients. Here, the Petitioner improperly relies on the impact she 
makes on her individual workplace and patients as sufficient to meet the first Dhanasar prong. 
On appeal, the Petitioner reemphasized that the field of healthcare is nationally important. However, 
as the Director explained, this alone is insufficient to establish the national importance of the 
Petitioner's endeavor. 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." Id. at 889. Although we acknowledge the 
Petitioner's additional evidence on appeal, including another recommendation letter from a colleague 
and an additional evaluation of the Petitioner's education and experience, this evidence does not 
address the evidentiary shortcomings in the record concerning the national importance requirement of 
the first Dhanasar prong. Even considering a nursing shortage exacerbated by COVID-19, we 
conclude that the Petitioner's endeavor impacts the specific patients and workplaces she serves and 
that she has not persuasively established how her endeavor will have a broader impact. 
Accordingly, the Petitioner's proposed work doesnotmeet the f irstprong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
Ill. CONCLUSION 
As the Petitioner has notmetthe requisitefirstprong of the Dhanasar analytical framework, we conclude 
that she has not established she is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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