dismissed EB-2 NIW Case: Ophthalmology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 25, 2024 In Re: 33940934 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an ophthalmologist and entrepreneur, seeks employment-based second preference 
(EB-2) 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 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 Form 1-140, Immigrant Petition for Alien Workers 
(national interest waiver), 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. The matter is 
now before us on appeal pursuant to 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/Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides 
the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. 
Citizenship and Immigration Services (USCIS) may, as matter of discretion,1 grant a national interest 
waiver if the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• 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. 
Id. 
II. ANALYSIS 
The Director found that the Petitioner qualifies for the EB-2 classification as an advanced degree 
professional based on his title of specialist in ophthalmology degree from Brazil. The issues on appeal 
are whether the Petitioner has met the three prongs of the Dhanasar framework to establish he merits 
a discretionary waiver of the job offer requirement in the national interest. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
individual proposes to undertake. Matter of Dhanasar, 26 l&N Dec. at 889. 
While the Petitioner did not submit a statement explaining his proposed endeavor, he did submit a 
business plan with his initial filing. According to the business plan, the Petitioner intends to serve as 
chief executive officer (CEO) of his sole proprietorship, a Florida based ophthalmology clinic 
specializing in eye care with an emphasis in prevention of adult and child blindness. 
The endeavor's merit may be shown in a range of areas such as business, entrepreneurial ism, science, 
technology, culture, health, or education. Id. The Petitioner asserts his endeavor will impact health, 
science, business, and entrepreneurship and provided a business plan and articles substantiating his 
assertion and reflecting that his proposed endeavor falls within one or more of the areas contemplated 
by Dhanasar. The Petitioner has therefore established the substantial merit of his proposed endeavor, 
and we withdraw the Director's determination to the contrary. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Id. In Dhanasar, we noted that, in assessing national importance, "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 at 890. 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. 
According to relevant portions of the Petitioner's initial business plan, he intends to help the country 
deal with the physician shortage; offer specialized services to American citizens and permanent 
residents at competitive prices to ensure no American is left without treatment; boost the economy by 
employing Americans and generating tax revenue from his business. He described his five-year plan 
of hiring staff to perform clinical services, including three ophthalmologists, totaling 15 employees, 
including himself. His plan estimated paying 1.1 million in taxes by year five. In response to the 
Director's request for evidence (RFE), the Petitioner provided an updated business plan, which added, 
in relevant part, that he intends to open his business in I I Florida, his business will have the 
latest technological advances, provide for tourists, and will host community events focused on eye 
health. 
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The Director reviewed the record, which included the self-petitioner's business plan, an updated 
business plan, educational and professional credentials, a curriculum vitae, articles concerning 
ophthalmology, and recommendation and support letters. The Director found the evidence provided 
placed considerable emphasis on the Petitioner's professional experience and achievements, as well 
as on the importance of the position, field, and industry rather than on the national importance of the 
Petitioner's proposed endeavor. The Director determined that the Petitioner had not established that 
the specific work he proposes to undertake will offer original innovations that will contribute to the 
ophthalmology field more broadly. The Director further determined that even considering the 
Petitioner's claimed potential for employment of U.S. workers and resulting economic ripple effects, 
the evidence did not sufficiently demonstrate that the Petitioner's proposed entity would operate on 
such ascale as to rise to the level of national importance. 
On appeal, the Petitioner asserts that the Director did not adequately or meaningfully address the 
evidence submitted with the petition. However, the Petitioner only identifies his business plan as not 
being properly evaluated. The Petitioner asserts his business plan contained well-funded economic 
projections of his business, demonstrated his know-how and entrepreneurial success in his own 
ophthalmology clinic in Brazil, explained how he intends to develop his research in the United States 
and how his work itself brings forth innovative methods in ophthalmology. 
Our de nova review indicates the Director properly considered the relevant evidence, including 
Petitioner's business plan and updated business plan (business plans), and we agree with the Director 
that the Petitioner has not established the national importance of his proposed endeavor. The business 
plans stated he intends to deal with physician shortages and describe hiring three ophthalmologists. 
However, his business plans do not specify how he intends to reduce physician shortage at a level 
commensurate with national importance. Further, the alleged shortage of occupations or occupational 
skills are directly addressed by the U.S. Department of Labor through the labor certification process 
and does not automatically render the Petitioner's proposed endeavor nationally important under the 
Dhanasar framework. 
On appeal, the Petitioner claims that his business plans described his intention to develop his research 
in the United States and how his work brings forth innovative methods in ophthalmology. The 
Petitioner's business plans discussed the clinic's mission and services, such as offering procedures 
like "LASIK" or "PRK," and described, for example, offering specialized services to American 
citizens and permanent residents at competitive prices to ensure no American is left without treatment, 
using the latest technological advances, caring for tourists in the I I Florida area, and hosting 
community events focused on eye health. However, the Petitioner's business plans did not explain or 
address how his methods and strategy are innovative, did not describe the future research the Petitioner 
would perform, and did not explain how his research and his clinic's proposed methods of treatment 
and engagement with the community would improve or advance the field to have national or global 
implications within the ophthalmology field. Id at 889. 
Further, we acknowledge the Petitioner's business plans described boosting the economy by hiring 14 
employees in five years and paying 1.1 million in taxes by year five. However, the Petitioner did not 
present any supporting evidence corroborating the assertions and projected figures in his business plan. 
Moreover, the Petitioner did not demonstrate his business plans' claimed revenue, employment 
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projections, and tax contributions, even if supported, would provide substantial economic benefits to 
the I I Florida region or the U.S. economy at a level commensurate with national importance. 
For these reasons, the record does not demonstrate that, beyond the limited benefits provided to his 
prospective clients and employees, the Petitioner's proposed endeavor has broader implications in the 
ophthalmology field or that it has the significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area for instance, 
rising to the level of national importance. 
We acknowledge the remaining evidence the Petitioner submitted, which predominantly demonstrates 
his past experience, work history, and skills as an ophthalmologist. However, the Petitioner's 
knowledge, skills, and abilities relate to the second prong of the Dhanasar framework, which relates 
to whether an individual is well-positioned to advance the proposed endeavor and therefore "shifts the 
focus from the proposed endeavor to the foreign national." Id. at 890. Here, the issue is whether the 
specific endeavor that he proposes to undertake has national importance under Dhanasar 's first prong, 
which focuses on the proposed endeavor itself and its prospective impact. 
The Petitioner also added additional endeavors in his response to the RFE, which the Director 
determined materially changed the proposed endeavor and were therefore not considered in the 
analysis of Dhanasar 's three prongs. While the Petitioner's original filing identified his proposal to 
be the CEO of an ophthalmology clinic, his updated business plan added that the Petitioner's company 
would also encompass consulting services to health professionals, physicians and private clinics in 
need of specialized knowledge in ophthalmology care and ways of automating their work and ensuring 
a proper diagnosis through a highly skilled team of professionals. According to the updated business 
plan, the Petitioner's company would also offer consulting services in research and development, 
training services for medical professionals and clinics, and telemedicine and remote consultations. 
On appeal, the Petitioner argues that his proposed endeavor has not materially changed because aCEO 
can perform multiple roles and his updated business plan explains the services he intends to provide 
under that role. Even if we accept the Petitioner's argument that the updated business plan provided 
more information about his proposed endeavor, we conclude that the Petitioner did not provide 
sufficient details regarding his consulting endeavor to establish national importance as contemplated 
by Dhanasar. The updated business plan only included a brief description of the consulting services. 
The remaining parts of the business plans included a description of the ophthalmology industry, the 
Petitioner's qualifications and work history as an ophthalmologist, and the marketing and social media 
presence. The Petitioner does not explain, and the record does not show what national or global impact 
his consulting services would have on the industry, and although the business plans also discuss the 
personnel to be hired and projected growth, the record does not support such projections or otherwise 
show that his endeavor would have substantial positive economic effects as contemplated by 
Dhanasar. Id. at 890. 
Accordingly, the Petitioner has not demonstrated the national importance of the proposed endeavor 
under the first Dhanasar prong, and therefore eligibility for a national interest waiver. As our finding 
is dispositive of this appeal, we reserve the Petitioner's arguments regarding whether he has 
demonstrated the second and third Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(stating that agencies are not required to make "purely advisory findings" on issues that are 
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unnecessary to the ultimate decision); 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). 
Ill. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework and therefore 
has not established that he merits, as a matter of discretion, a national interest waiver of the job offer 
requirement attached to this classification. 
ORDER: The appeal is dismissed. 
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