dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 23052362 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 20, 2022 
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 a member of the 
professions holding an advanced degree, 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). 
The Acting Director of the Texas Service Center denied the petition, concluding 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. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. 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. 
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 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, 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, USCIS 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 
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) 
1 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) (NYSDOT). 
2 See also Poursina v. USCIS, 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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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. 3 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, the issue to be determined on appeal 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. For the reasons discussed below, we agree with the Director that the Petitioner 
has not sufficiently demonstrated eligibility under the first prong of the Dhanasar analytical 
framework. 
The first prong relates to substantial merit and national importance of the specific proposed endeavor. 
Dhanasar, 26 I&N Dec. at 889. The Petitioner initially provided a statement indicating: 
I found here [ the United States] how valued the health professional is, and also the scarcity 
of this professional, and its necessary in acting nurses. I hope soon to be able to 
collaborate with my professional experience, because nursing is an art of caring 
unconditionally, is caring for someone you have never seen in your life, but still help and 
do your very best for them. You can't do it just for money, I believe it has to be done for 
and with love anywhere in the world. 
In response to the Director's request for evidence (RFE), the Petitioner stated: 
I have included ... a full business plan better defining my proposed endeavor in the 
healthcare industry, and my specific contributions that will are [sic] of national importance 
which includes many aspects including my impact within the Healthcare industry, my 
potential to employ U.S. workers, how my endeavor will benefit societal welfare, and it 
impacts matters that have been described as having national importance and are the 
subject of national initiatives. 
To better understand the aforementioned, I would like to first talk about my proposed 
endeavor I and will provide! I I land I 
will offer excellent care in the patient's home with portable 
equipment and a vast amount of materials and medications packed in appropriate (rescue) 
bags. The professional will examine and, if necessary, the professional will perform and 
procedure necessary for stabilization in your home or removal to a hospital unit. 
if the patient is in care at a clinic and who has contracted our 
24-hour removal service, they will have access to the advanced support ambulance for 
immediate transport of the patient. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 
In response to the Director's notice of intent to deny, the Petitioner referenced her business plan and 
claimed that her "proposed endeavor, I will provide independent 
medical transport services, with 3 options being: Basic Removal, Advanced Support Removal and 24-
hour Clinic Removal," and "[t]he company's operating area will bethel I 
region." On appeal, the Petitioner contends: 
[B]ased on the vision of the American government and on national initiatives that 
demonstrate the significant potential for impact and, consequently, national importance of 
my endeavor as a Nurse heading and, therefore, 
that my proposed endeavor has national or even global implications within a particular 
field (healthcare transportation) and impacts a matter that a government entity has 
described as having national importance or is the subject of national initiatives. 
The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but 
not its national importance. For the reasons discussed below, we agree with the Director that the Petitioner 
has not sufficiently shown the national importance aspect of her proposed endeavor. 
At the outset, a petitioner must establish eligibility for the requested benefit at the time of filing. See 
8 C.F.R. § 103.2(b)(l). As indicated above, the Petitioner initially claimed that her proposed endeavor 
involved her "collaborat[ion] with [her] professional experience" as a nurse. The Petitioner did not claim 
that she intended to create a new business, I I In fact, the record 
does not reflect her intention to open and operate an ambulatory service company or work in healthcare 
transportation prior to the Director's issuance of the RFE and only offered this proposed endeavor after 
receiving the RFE. A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1988). That decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that USCIS cannot "consider facts 
that come into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we will not 
consider the Petitioner's materially changed proposed endeavor of operating an ambulatory service 
company. 
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. Here, the Petitioner 
must demonstrate the national importance of her providing nursing services rather than the national 
importance of nursing or the wide range of healthcare fields or industries in which she intends to work. 
In Dhanasar, we further noted that "we look for broader implications" of the proposed endeavor and 
that "[aa ]n undertaking may have national importance for example, because it has national or even 
global implications within a particular field." Id. We also stated 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. 
Furthermore, although the record contains a "Summary of Professional Qualifications," the Petitioner's 
experience, skills, and abilities in her field relate to the second prong of the Dhanasar framework, which 
"shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is 
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whether the specific endeavor that she proposes to undertake has national importance under 
Dhanasar's first prong. 
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. While she 
contended the importance of the health profession and scarcity of nurses in the United States, the 
Petitioner has not offered sufficient, specific information and evidence to demonstrate that the 
prospective impact of her specific proposed endeavor rises to the level of national importance. 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. Here, the 
record does not show that the Petitioner's proposed endeavor of providing nursing services stands to 
sufficiently extend beyond her potential or futuristic patients, to impact the field or any other industries 
or the U.S. economy more broadly at a level commensurate with national importance. 
In addition, the Petitioner has not established that the specific endeavor has significant potential to 
employ U.S. workers or otherwise offers substantial positive economic effects for our nation. While 
she claimed a shortage of nurses in the United States, that issue is addressed by the U.S. Department 
of Labor through the labor certification process. In addition, the Petitioner did not demonstrate how 
providing her nursing services would somehow influence those figures. Without sufficient 
information or evidence regarding any projected U.S. economic impact or job creation attributable to 
her future work, the record does not show that the benefits to the U.S. regional or national economy 
resulting from her nursing services would reach the level of "substantial positive economic effects" as 
contemplated by Dhanasar. Id. at 890. 
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. 4 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that she has not established that 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 reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
4 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-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). 
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