dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 04, 2023 In Re: 28513445 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, anurse, seeks classification as amember of the professions holding an advanced degree 
or of exceptional ability, 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 employment based second preference (EB-2) 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. See Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) 
(finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. 
Whilst 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 USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed endeavor has 
both substantial merit and national importance, (2) 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 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen's 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ELIGIBILITY FOR DISCRETIONARY WAIVER OF THE JOB OFFER, AND SO A LABOR 
CERTIFICATION, IN THE NATIONAL INTEREST 
A The Proposed Endeavor 
The Petitioner's proposed endeavor in the United States as described in their initial and updated 
professional plan and statement is to continue their career as a nurse to "assist U.S. hospitals, clinics, 
and any other medical facilities to treat patients (children, adults, and the elderly) that need [their] 
specialty to recover their health." The Petitioner identifies "neonatology, family health, public and 
community health, occupational health and school health with a focus on urgent care for emergencies, 
risk classification and mobile pre-hospital emergency care" as areas of their expertise. The Petitioner 
described their intended services and initially vaguely referred to a nascent intention to "validate [their] 
nursing credentials in the United States" in order "to mimic [their] professional achievements in 
Brazil." The Petitioner contended that the expectation of continued increasing demand for nursing 
services in combination with a shortage of nurses in the United States demonstrated a national 
importance for their proposal to serve as nurse in the United States. The Petitioner also submitted an 
expert opinion letter from a professor at,__ ______ __.in New York, 
New York. ,______ ___.opinion also rooted the national importance of the Petitioner's proposed 
endeavor in terms of the demand for nursing services in the United States, the shortage of qualified 
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nursing personnel leading to "burnout," and the benefit to an aging population and workforce requiring 
nursing services. 
B. Substantial Merit and National Importance 
1) Substantial Merit 
We withdraw the Director's determination that the Petitioner's proposed endeavor was not of 
substantial merit. An endeavor's merit may be demonstrated in a range of areas such as business, 
entrepreneurialism, science, technology, culture, health, or education. Dhanasar at 889. The 
Petitioner described their endeavor as a "nurse." The record before us contains evidence of the 
characterization of the Petitioner's proposed endeavor as a "nurse" which falls within the range of 
areas (health) we concluded could demonstrate endeavors of substantial merit. So the record supports 
the substantial merit of the Petitioner's proposed endeavor. 
2) National Importance 
As stated above, the Petitioner's proposed endeavor is to continue their career as a nurse. We agree 
with the Director that the Petitioner did not demonstrate that their proposed endeavor was of national 
importance, albeit on a different basis. The Petitioner contended that ripple effects of their proposed 
nursing endeavor rose to a level of national importance because the intended effects could realize 
national benefits such as addressing a shortage of nursing professionals, optimizing obstetric nursing 
care, and training the "next generation of nurses, as well as current professionals in the field.1 
The Petitioner heavily grounds their assertions in support of a national interest waiver on their past 
function as a nurse in their home country. They submitted numerous documents into the record to 
support their contention that they were a nurse in their home country whose work was appreciated, 
recognized, valued, and contributed to positive outcomes. But the Petitioner's past performance of 
their proposed endeavor is not relevant to an evaluation of that endeavor's national importance. 2 
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirements, we look to evidence documenting the "potential prospective impact" of their work. In 
determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 26 l&N Dec. at 889. In 
Dhanasar, we noted that "we look for broader implications" of the proposed endeavor and that "[a]n 
undertaking may have a national importance for example, because it has national or even global 
implications within a particular field." Id. We also noted that "[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. So what is critical in determining the national importance under Dhanasar is whether the 
1 We depart from the Director's comments about the endeavor's commonality and ubiquity because the Dhanasar 
analytical framework does not elevate an endeavor's prevalence or common occurrence above its potential prospective 
impact when evaluating the endeavor's substantial merit and national importance. 
2 The Petitioner's education, skills. knowledge, and record of success in related or similar efforts are a relevant point for 
evaluation under Dhanasar ·s second prong. 
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proposed endeavor has a potential prospective impact with broader implications which rise to the level 
of national importance. Thus, it is not what duties or what occupation the noncitizen will fill or 
perform but their actual plan with their occupation and duties that is examined. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter of Y-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
of documents, testimony, etc. that adheres the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The evidence and argument the Petitioner introduced into the record does not help them carry their 
burden of production and persuasion. For example, the expert opinion submitted by the Petitioner 
does not illuminate the national importance of the Petitioner's proposed endeavor. The writer did not 
explain how the Petitioner's work would address ashortage of nursing professionals at a national level. 
Moreover, the writer mainly focused on the Petitioner's past performance as a nurse, which is not 
germane to an evaluation of whether the benefits of their present nursing endeavor in the United States 
would rise to a level of national importance. 
And the industry reports and articles record do not adequately reflect how the Petitioner's endeavor 
will broadly enhance societal welfare in a manner that rises to a level of national importance. For 
example, it is not apparent from the record how the Petitioner's practice of nursing has broader 
implications beyond the immediate circle of patients they will treat. And it is not sufficiently explained 
in the record how government concerns for the provision of quality healthcare are impacted by the 
Petitioner's nursing endeavor in amanner which rises to a level of national importance. For example, 
whilst the Petitioner cites health literacy limitations in the population and their impact on health 
outcomes, they do not describe how their provision of nursing services as part of their endeavor would 
increase health literacy in a manner implicating national importance. 
The Petitioner's aim to address nursing shortages in the United States through the national interest 
waiver process is misplaced. The national interest waiver is not designed to address labor shortages. 
Moreover, astreamlined process allows employers to sponsor nurses in the employment based second 
or third preference immigrant classification under the Department of Labor's (DOL) Schedule A 
designation of nurses under their regulation at 20 C.F.R. § 656.15. Schedule A designation is available 
to U.S. employers petitioning for noncitizen workers to fill occupations identified as having a 
recognized shortage of able, available, and qualified U.S. workers. As there is a recognized shortage, 
those employers are not required to take the mandatory regulatorily prescribed steps to test the labor 
market prior to filing an application for permanent employment certification. See 20 C.F.R. § 656.17. 
By regulation, a petition seeking to designate a noncitizen under Schedule A must be filed by an 
employer with a qualifying job offer. See 8 C.F.R. § 204.5(k)(4)(i) and (ii). Consequently, the 
noncitizen's work is sought by the petitioning employer for their benefit and not necessarily for the 
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broader national interest. Immigration and Nationality Act (the Act) section 203(b)(4), 8 U.S.C. § 
1153(b)(4). 
In any case, the practice of nursing directly benefits only those individuals benefiting from the 
Petitioner's administration of nursing care. And the Petitioner's intention to train the "next generation 
of nurses, as well as current professionals in the field" also only benefits the individuals directly 
receiving the training or instruction from the Petitioner. The end result of the Petitioner's attention to 
nursing shortages and training of professionals new and more seasoned in their endeavor is akin to 
how the benefit of someone's teaching is generally only directly beneficial to the students being taught 
and not wider population. In Dhanasar we discussed how teaching would not impact the field of 
education broadly in a manner which rises to national importance. Dhanasar at 893. By extension 
activities which only benefit a small subset of individuals, like the Petitioner's proposed physical 
therapy endeavor, would not rise to a level of national importance. 
So we conclude that the Petitioner has not established that their proposed endeavor is of national 
importance. 
Ill. CATEGORICAL ELIGIBILITY FOR EMPLOYMENT BASED SECOND PREFERENCE 
Upon a de novo review of the record, we will withdraw the Director's conclusion that the Petitioner 
demonstrated that they were an advanced degree professional eligible for classification as an 
employment based second preference immigrant. 
The Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record contains a credential evaluation equating a combination of the 
Petitioner's education and progressive work experience to a U.S. master of science in nursing degree. 
In order to be eligible under section 203(b)(2), 8 U.S.C. § 1153(b)(2){A), the Petitioner must have a 
single degree that is the "foreign equivalent degree" to a United States master's degree or a single 
degree that is the "foreign equivalent degree: to a United States baccalaureate degree plus five years 
of progressively responsible work experience. So the credential evaluation is not probative to establish 
the Petitioner's categorical eligibility for classification as an employment based second preference 
immigrant. 
And the record contained insufficient evidence to evaluate the Petitioner's eligibility for EB-2 
classification as an individual of exceptional ability. 3 So the Petitioner should be prepared to address 
their categorical eligibility for EB-2 classification either as an advanced degree professional or an 
individual of exceptional ability in any future proceedings requiring a petitioner to demonstrate 
eligibility as an advanced degree professional or individual of exceptional ability. 
IV. CONCLUSION 
3 As the resolution of the issues pertaining to the Petitioner's eligibility for a waiver of the job offer requirement, and thus 
of a labor certification, under the Dhanasar analytical framework are dispositive of this appeal, further investigation and 
analysis of the Petitioner's categorical eligibility for EB-2 classification as an advanced degree profession or individual 
with exceptional ability by issuing a request for evidence would serve no legal purpose. 
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The Petitioner has not demonstrated the record contains sufficient evidence to establish they met the 
first prong of the Dhanasar analytical framework. And because the Petitioner has not established that 
the proposed endeavor has national importance, as required by the first Dhanasar prong, they are not 
eligible for a national interest waiver. We reserve our opinion regarding the second and 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 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). So we must dismiss the appeal. 
ORDER: The appeal is dismissed. 
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