dismissed EB-2 NIW Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 07, 2023 In Re: 28806718 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a nurse, seeks employment-based second preference (EB-2) immigrant classification 
as an individual of exceptional ability, as well as anational 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). 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. The Director concluded that the record 
did not demonstrate the Petitioner merits a discretionary waiver of the job offer requirement 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 a/Chri sta '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. Section 203(b)(2)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of abachelor's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or aforeign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
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 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A) -(F).2 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification.3 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 
ordinari ly encountered in the field.4 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion5, 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. ANALYSIS 
The Petitioner proposes to work in the United States as a nurse. The Director determined that the 
Petitioner established her eligibility for the underlying EB-2 classification as an individual of 
exceptional ability; however, she did not establish that a waiver of the requirement of a job offer, and 
thus a labor certification, would be in the national interest. 
A Individual of Exceptional Ability 
The Director determined that the Petitioner established her eligibility for the underlying EB-2 
classification as an individual of exceptional ability. However, the Director did not provide an 
explanation for the finding. Upon de nova review, the record does not establish the Petitioner is an 
individual of exceptional ability. 
The Petitioner claimed that she meets four of the six evidentiary criteria under 8 C .F.R. § 
204.5(k)(3)(ii). For the reasons provided below, we conclude that the Petitioner does not meet the 
initial evidentiary requirements for classification as an individual of exceptional ability. 
2 If these types of evidence do not readily apply to the individual 's occupation , a petitioner may submit comparable 
evidence to establish eligibility . 8 C.F.R. § 204.5(k)(3)(iii). 
3 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. See generally 6 USCIS Policy Manual F.5(B)(2), https: //www.uscis.gov/policy-manual. 
4 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence is first counted 
and then, if it satisfies the required number of criteria, considered in the context of a final merits determination); see 
generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
5 See also Poursina v. USClS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
An official academic record showing that the individual has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution 
of learning relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii){A). 
The Petitioner submitted copies of two diplomas indicating she earned a bachelor's degree in nursing 
from Universidade I I in Brazil in 2014 and a 
1
ost-baccalaureate 
specialization degree in urgency and emergency froml in Brazil in 2016; 
the respective academic transcripts; and an academic evaluation. Based on these documents, the 
Petitioner has established that she meets the criterion. 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
The Petitioner submitted documents indicating she is licensed as a registered nurse for Florida and 
New York. Based on this evidence, the Petitioner has demonstrated she meets the requirements for 
the criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
To meet this criterion, the Petitioner submitted a certificate of good standing from the National Board 
of Nursing~ Iin Brazi I stating that the Petitioner is registered with the agency and is "suitable 
for professional practice as a nurse," has paid her fees, and has no ethical or behavioral proceeding 
decisions. The Petitioner also provided awebsite printout indicating that the Federal Nursing Council 
and its regional councils regulate nurses, nursing technicians, and assistants. 
However, the Petitioner has not explained how the Petitioner's certificate of good standing as a 
registered nurse with the National Board of Nursing evidences her membership in a professional 
association pursuant to the regulations for this criterion. The record does not demonstrate what 
professional qualifications, if any, the counci I considered for issuance of the document to the 
Petitioner. The record does not include evidence demonstrating the National Board of Nursing is a 
professional association, as required under the criterion. 
The Petitioner has not demonstrated her membership in a professional association under the criterion. 
Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner submitted letters of support from her physician colleagues and professors. The letters 
attest to the Petitioner being a committed and knowledgeable student who did well in her coursework, 
as well as being a competent, reliable, and skilled nurse who is attentive to her patients. While the 
record shows the Petitioner is educated and trained as a nurse, and her colleagues value the care she 
provides to her patients, it does not demonstrate that the Petitioner has been recognized for 
achievements and significant contributions to the industry or field, as required under the criterion. 
Therefore, the Petitioner has not demonstrated she meets this criterion. 
3 
The Petitioner also submitted an opinion as comparable evidence under 8 C.F.R. § 204.5(k)(3)(iii). 
According to 8 C.F.R. § 204.5(k)(3)(iii), if the regulatory criteria standards under 8 C .F.R. § 
204.5(k)(3)(ii)(A)-(F) do not readily apply to a petitioner's occupation, comparable evidence may be 
submitted to establish the eligibility for exceptional ability. When evaluating such comparable 
evidence, USCIS considers whether the criteria are readily applicable to a petitioner's occupation and, 
if not, whether the evidence provided is truly comparable to the criteria listed in the regulation. 6 The 
Petitioner should explain why the evidence it has submitted is comparable. General assertions that 
any of the six objective criteria do not readily apply to the Petitioner's occupation are not acceptable.7 
Here, the Petitioner submitted an opinion from.________ __, professor at ._I_____, 
.___ ___.I in New York, and described it as "other comparable evidence of eligibility." However, she 
does not explain why the evidence is comparable or why any of the regulatory criteria under 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F) do not apply to her occupation. I I opinion focuses on the 
Petitioner 's eligibility under the regulations for a discretionary waiver of the job offer requirement in 
the national interest. See Section 203(b)(2)(B)(i) of the Act. The opinion does not mention the 
underlying EB-2 classification or the Petitioner's eligibility as an individual of exceptional ability. 
Without further information how the opinion is comparable to the regulatory criteria, we are unable to 
determine that it is comparable evidence pursuant to 8 C.F.R. § 204.5(k)(3)(iii). Instead, the evidence 
appears to be general additional evidence to be considered in assessment of exceptional ability. If the 
Petitioner had met three of the regulatory criteria under 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), this evidence 
would be considered in the final merits determination to decide whether the evidence in its totality 
shows that the Petitioner is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field.8 
The Petitioner has not established that she meets at least three of the evidentiary criteria at 8 C.F.R. § 
204.5(k)(3)(ii)(A) through (F). Since the Petitioner did not satisfy the initial evidence requirements, 
we need not conduct a final merits analysis to determine whether the evidence in its totality shows that 
she is recognized as having adegree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). Nevertheless, we advise that we have reviewed 
the record in the aggregate and conclude that it does not support a finding that the Petitioner has 
established the recognition required for classification as an individual of exceptional ability. 
B. National Interest Waiver 
The Director determined that while the Petitioner demonstrated the proposed endeavor has substantial 
merit, she did not establish that it is of national importance, as required by the first prong of the 
Dhanasar framework. The Director further found that while the Petitioner established she is well 
positioned to advance the proposed endeavor under the second prong of Dhanasar, she did not show 
that on balance, waiving the job offer requirement would benefit the United States under the third 
6 See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
7 See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
8 See Kazarian v. USCIS, 596 F.3d at 1119-20; see generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
4 
prong of Dhanasar. Upon de novo review, we agree with the Director's determination that the 
Petitioner did not demonstrate that a waiver of the labor certification would be in the national interest.9 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining national importance, the relevant question is not the importance 
of the field, industry, or profession in which the individual will work; instead, we focus on the "the 
specific endeavor that the foreign national proposes to undertake." Matter of Dhanasar, 26 l&N Dec. 
at 889. 
The Petitioner proposes to work in the United States as a nurse with a healthcare facility. The 
Petitioner states, "She will provide and coordinate high-quality care to patients with wide-ranging 
injuries and illnesses, educate patients and the public about various health conditions, and provide 
advice and emotional suppmi to patients and their family members." She also indicates she will 
promote "proper treatment techniques by training other nurses." The Petitioner indicates that her work 
will contribute to overcoming the shortage of knowledgeable and qualified nurses in the healthcare 
industry. We agree with the Director that the Petitioner's endeavor has substantial merit. 
Even though the Petitioner's proposed endeavor has substantial merit, the Director found that the 
record did not "establish that her nursing work would impact the nursing field and healthcare industry 
more broadly, as opposed to being limited to the patients she serves and her colleagues she will 
mentor." Accordingly, the Director found that the Petitioner's "work as a Nurse does not meet the 
'national importance' element of the first prong of the Dhanasar framework." 
The Petitioner contends on appeal that the Director did not apply the proper standard of proof, instead 
imposing a stricter standard, and erred by not giving "due regard" to the evidence submitted, 
specifically the Petitioner's resume outlining her experience; her professional plan and statement 
describing her professional accomplishments and her proposed endeavor's benefits; evidence of her 
contributions to the field; letters of recommendation from her professors and colleagues; and industry 
reports and articles showing the national importance of the proposed endeavor and the shortage of 
professionals in the field. Upon de nova review, we find the record does not demonstrate that the 
Petitioner's proposed endeavor satisfies the national importance element of Dhanasar's first prong, as 
discussed below. 
The standard of proof in this proceeding is a preponderance of evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 25 
l&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). Here, 
the Director properly analyzed the Petitioner's documentation and weighed the evidence to evaluate 
the Petitioner's eligibility by a preponderance of evidence. 
9 While we may not discuss every document submitted, we have reviewed and considered each one. 
5 
On appeal, the Petitioner argues that her proposed endeavor has national importance, particularly 
because it will "generate substantial ripple effects on behalf of the United States." The Petitioner 
stresses her education and her more than nine years of experience in the health field to show "her 
proposed work offers innovations and improvements of broad implications to the United States." She 
argues that her resume and professional statement show her qualifications and knowledge make her 
"uniquely qualified to advance her proposed endeavor to enhance U.S. competitiveness in the sector" 
and wi 11 "help the [United States] stay competitive by bringing competitive services, helping develop 
the country, and producing income for the U.S. economy." 
However, the Petitioner's reliance on her academic credentials and professional experience to establish 
the national importance of her proposed endeavor is misplaced. Her academic credentials and 
professional experience relate to the second prong of the Dhanasar framework, which "shifts the focus 
from the proposed endeavor to the foreign national." Matter of Dhanasar, 26 l&N Dec. at 890. The 
issue here is whether the specific endeavor that the Petitioner 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. See id. at 889. 
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. The record 
does not demonstrate that the Petitioner's proposed endeavor will substantially benefit the fields of 
nursing and healthcare, as contemplated by Dhanasar: "[a]n undertaking may have national 
importance for example, because it has national or even global implications within a particular field, 
such as those resulting from certain improved manufacturing processes or medical advances." Id. The 
evidence does not suggest that the Petitioner's work as a nurse for a healthcare facility would impact 
the nursing and healthcare fields more broadly. 
With the petition, the Petitioner submitted her professional statements contending her proposed 
endeavor has national importance based on her work as a nurse mitigating the shortage of qualified 
healthcare professionals in the United States. The Petitioner states, "The [United States] is in desperate 
need of professional Nurses of my caliber and, as a Nurse, I care for my patients and willingly place 
myself in dire situations in order to care for the sick." Her statement explains the growing need for 
qualified nurses, the U.S. shortage of nurses and healthcare professionals, and her willingness to help 
meet the need for nurses. She argues on appeal that the record includes reports and articles showing 
the "important role that Nurse professionals play in the health field" and "due to its economic 
implications - which very much affect nationwide preparedness." The Petitioner further explains the 
importance of nurses during a public health crisis, such as during the recent COVID-19 pandemic. 
The reports and articles relate to: nursing careers; importance of nurses; healthcare worker shortage; 
expected job growth of nurses; issues with job retention of nurses; increased demand for healthcare 
workers under the Affordable Care Act; differences between registered nurses and bachelor of science 
nursing; nurse practitioners in the United States; mobile technology benefiting healthcare; monkeypox 
straining public health system; a report on education and the workforce for science, math, engineering, 
and mathematics; and U.S. hospitals hiring foreign nurses. 
We recognize the importance of the healthcare industry, the nursing field, and related careers, and the 
significant contributions from immigrants who are nurses in the United States; however, merely 
6 
working in the healthcare field as a nurse is insufficient to establish the national importance of the 
proposed endeavor. Instead, we focus on the "the specific endeavor that the foreign national proposes 
to undertake." See id. We acknowledge that a shortage of nurses and healthcare professionals 
demonstrates substantial merit of a proposed endeavor; however, it does not render a proposed 
endeavor nationally important under Dhanasar's framework, as it does not in itself establish the 
proposed endeavor's impact in the field. As pointed out by the Director, the U.S. Department of Labor 
through the labor certification process directly addresses such shortages of qualified workers. The 
issue here is whether the Petitioner has established how her proposed endeavor would affect national 
nursing and healthcare employment levels or the U.S. economy more broadly consistent with national 
importance. However, the record does not demonstrate how the Petitioner's proposed endeavor will 
address a shortage of qualified nurses or healthcare professionals. 
In Dhanasar, we noted that "we look for broader implications" of the proposed endeavor and that 
"[a]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. The industry reports and articles submitted do not discuss how the Petitioner working as a 
nurse will overcome the shortage of nurses and healthcare workers in the United States. 
To further support the national importance of her endeavor, the Petitioner submitted an opinion from 
I Iprofessor for the nursing department atl lin New York. 
The opinion, however, focuses on the Petitioner's work being "in an area of substantial merit and 
national importance." It describes how the United States will continue to a have a major shortage of 
nurses to the year 2028. The opinion mainly focuses on the Petitioner's work as a nurse having 
"national importance for U.S. healthcare institutions operating [sic] or planning to operate in Brazil, 
wishing to have the expert guidance and advice of such ahealthcare professional as [the Petitioner]." 
The opinion describes the Brazil healthcare system and a U.S. healthcare company providing services 
in Brazil benefiting from the Petitioner's services. The opinion focuses on the need for qualified 
nurses and how the Petitioner's experience as a nurse in Brazil makes her well positioned to provide 
guidance and advice to U.S. healthcare companies operating or planning to operate in Brazil, instead 
of focusing on the Petitioner's specific endeavor having aprospective impact in the field of nursing. 
However, the record does not indicate that the Petitioner's proposed endeavor includes actively 
targeting U.S. healthcare companies that do business, or plan to do business in Latin America or Brazil. 
Where an opinion is not in accord with other information or is in any way questionable, USCIS is not 
required to accept it or may give it less weight. See Matter of Sea, Inc., 19 l&N Dec. 817 (Comm'r 
1988). The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility . Matter of Caron lnt 'I, 19 l&N Dec. 791, 795 (Comm'r. 1988); see also Matter of D-R, 25 
l&N Dec. 445,460 n.13 (BIA 2011) (discussing the varying weight that may be given expert testimony 
based on relevance, reliability, and the overall probative value). Also, as previously discussed, stating 
that the Petitioner's work would support an important industry with a shortage of qualified 
professionals is not sufficient to meet the "national importance" requirement under the Dhanasar 
framework. 
7 
The Petitioner does not demonstrate that her proposed endeavor extends beyond her future patients or 
employers to impact the field or any other industries more broadly at a level commensurate with 
national importance. She has not demonstrated that the work she proposes to undertake as a nurse 
offers original innovations that contribute to advancements in her industry or otherwise has broader 
implications for her field. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, she 
has not demonstrated eligibility for 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 eligibility 
and appellate arguments under the second and third prongs. 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). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that the Petitioner has not established eligibility for a national interest waiver as amatter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
8