dismissed EB-2 NIW Case: Oncologic Surgery

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 15, 2023 In Re: 28020666 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, physician and general surgeon specializing in oncologic breast surgery and treatment, 
seeks employment-based second preference (EB-2) immigrant classification as a member of the 
professions holding an advanced degree or as an individual of exceptional ability, 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 Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that she had not 
established 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. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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. 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. 1 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 
1 Section 203(b )(2)(B)(ii) of the Act provides a national interest waiver for certain physicians who agree to work in an area 
designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health 
care facility under the jurisdiction of the Secretary of Veterans Affairs . In addition , the physician must show that a Federal 
agency or a state department of public health has previously determined that his work in such an area or at such a facility 
was in the public interest. Id. The Petitioner maintains on appeal that she seeks classification pursuant to section 
203(b )(2)(B)(i) of the Act. 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion 2, 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 Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined 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 conclude that the Petitioner has not sufficiently demonstrated the national 
importance of her proposed endeavor under the first prong of the Dhanasar analytical framework. 
With respect to her proposed endeavor, the Petitioner initially indicated that she intends to work in "the 
U.S. as a highly-skilled physician with exceptional expertise in General Surgeon - Mastologist." She 
further stated that she plans "to serve as General Surgeon in the United States, focusing on alleviating the 
early stages of breast pathologies." The Petitioner also indicated that "she will promote patients' overall 
well-being, implement techniques in the healthcare setting, and train other professionals to develop their 
skills." 
In response to the Director's request for evidence (RFE), the Petitioner reiterated that her proposed 
endeavor in the United States involves "female oncologic breast surgery and treatment." The Petitioner's 
"Professional Plan" indicated that she intends "to work full-time in a clinical practice" and that her patient 
care actions will assist in reducing "the barriers that hinder early diagnosis and timely treatment of breast 
cancer, helping to guarantee a high rate of recovery based on comprehensive care." Additionally, she 
asserted that she will "provide health care to American patients as a consultant and trainer of qualified 
medical personnel while she fulfills her licensing and degree registration process to fully practice at a 
residency level." The Petitioner further noted that she is "qualified to teach and train students and 
professionals" in her field. 
The record includes information about breast implant illness, issues patients should consider regarding 
their breast implants, and health problems associated with breast implants. The record therefore 
supports the Director's determination that the Petitioner's proposed endeavor has substantial merit. 
In addition, the Petitioner provided articles discussing Health Professional Shortage Designations, 
Area of Critical Need Facility Designations, federal shortage designations relating to health care 
services, Florida physician shortages, recommendations for overcoming the physician shortage in 
Southwest Florida, and the worsening Florida physician shortage. We are not persuaded by the 
Petitioner's claim that her proposed endeavor has national importance due to the shortage of 
professionals in her field. A shortage of qualified professionals alone does not render the work of an 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
individual physician or surgeon nationally important under the Dhanasar precedent decision . Here, 
the Petitioner has not established that her proposed endeavor stands to impact or significantly reduce 
the claimed national shortage. Moreover, shortages of qualified workers are directly addressed by the 
U.S. Department of Labor through the labor certification process. 
Furthermore, the Petitioner provided letters of support from A-V-, N-D-C-F-, R-J-M-D-, L-D-C-, M­
I-F-, and R-A-B- who discuss her medical qualifications and experience. The Petitioner's skills, 
knowledge, and prior work in her field, however, 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 whether the specific endeavor that she proposes to undertake has national importance 
under Dhanasar's first prong. The aforementioned letters do not contain sufficient information and 
explanation, nor does the record include adequate corroborating evidence, to show that the Petitioner's 
specific proposed work as physician and general surgeon specializing in oncologic breast surgery and 
treatment offers broader implications in her field or substantial positive economic effects for our nation 
that rise to the level of national importance. 
In the decision denying the petition, the Director determined that the Petitioner had not established the 
national importance of her proposed endeavor as required in the Dhanasar precedent decision. 3 The 
Director explained that the Petitioner had not demonstrated "the potential prospective impact of [her] 
continued work as a medical surgeon, or how her work will have broader implications in the field of 
medicine." 
In her appeal brief, the Petitioner argues that she "is a medical expert in the healthcare field having worked 
as a doctor for over 20 years within the specialty of breast cancer treatment, mastectomy surgery, and 
breast cancer related surgical procedures." As previously explained, the Petitioner's claims regarding her 
experience as a physician, medical qualifications, and surgical skills 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 whether the specific endeavor that she proposes to undertake has national 
importance under Dhanasar' s first prong. 
The Petitioner also points to our non-precedent case, Matter of E-C-H-, involving a consultant whose 
proposed work involved improving programs and assisting organizations that provide support and 
advocacy for U.S. veterans and wounded warriors. She contends that her case is similar to the 
aforementioned matter because she provided "a detailed professional plan with a professional strategy, 
progress description, and plan of action." The non-precedent decision referenced by the Petitioner was 
not published as a precedent and therefore does not bind USCIS officers in future adjudications. See 8 
C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of the 
individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues 
considered, and applicable law and policy. Here, the Petitioner has not established that the facts of the 
instant petition are analogous to those in the non-precedent decision. For example, unlike the 
3 The Director 's decision noted representations in the Petitioner 's business plan (provided in response to the RFE) 
consistent with a request for classification under section 203(b )(2)(B)(ii) of the Act. Regardless , after explaining that the 
Petitioner had not demonstrated her eligibility pursuant to section 203(b )(2)(B)(ii) of the Act, the Director still considered 
the Petitioner 's documentation under section 203(b )(2)(B)(i) of the Act using the analytical framework set forth in 
Dhanasar . 
3 
individual in Matter ofE-C-H-, the Petitioner has not demonstrated that her proposed endeavor offers 
broader implications in the field. 
In addition, the Petitioner contends that her proposed work "will more likely than not create job 
opportunities within the field" in locations in South Florida. She asserts that her "entrepreneurship is 
more likely than not to produce substantial and broader economic benefits to the country while focusing 
in a specific geographic area of the country and while significantly and potentially employing workers 
and creating economic welfare in a detennined area." In Dhanasar , we 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 Petitioner, however, has not offered evidence indicating that her specific 
undertaking has significant potential to employ U.S . workers or otherwise offers substantial positive 
economic effects for our nation. 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 
benefits to the regional or national economy resulting from the Petitioner's medical practice would reach 
the level of "substantial positive economic effects" contemplated by Dhanasar . Id. at 890. 
The Petitioner also points to the information she submitted about breast implant illness, issues patients 
should consider regarding their breast implants , and health problems associated with breast implants. 
While these articles help show the substantial merit of her proposed endeavor , they are not sufficient 
to demonstrate its national importance. 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." See Dhanasar, 
26 I&N Dec . at 889 . In Dhanasar, we further 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. 
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 the 
Petitioner's proposed surgical , clinical , and teaching duties have substantial merit, she has not offered 
sufficient information and evidence to demon strate that the prospective impact of her proposed 
endeavor rises to the level of national importan ce. 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, we conclude the record does not show that the 
Petitioner's clinical and instructional work stands to sufficiently extend beyond her future patients and 
medical trainees to impact academia or the field of oncologic breast surgery more broadly at a level 
commensurate with national importance. Accor dingly, the Petitioner 's proposed work does not meet 
the fust prong 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. Since this issue is dispositive of the Petitioner's 
appeal , we decline to reach and hereby reserve the appellate arguments regarding her eligibility under 
the second and third prongs outlined in Dhanasar. 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 
4 
to the results they reach"); see also Matter ofL-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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong 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 reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
5