dismissed EB-2 NIW Case: Optometry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 20, 2024 In Re: 33378038 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an optometrist specialist 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in an unpublished decision) in concluding that USCIS ' decision to grant or deny a national interest waiver is discretionary 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 
According to the record, the Petitioner obtained a degree in optometry in June 2015 in Colombia. She 
then worked for an eye care company as an optometrist and scientific director from August 2015 to 
December 2018; a separate eye care company as an optometrist, scientific director, and shareholder 
from January 2016 to September 2022; and a retail company as a sales executive from January 2019 
to January 2023. In May 2023, she entered the United States on astudent visa. She filed her national 
interest waiver in July 2023. 
The Petitioner's proposed endeavor is to work as an optometrist specialist providing high-quality 
services diagnosing and treating patients in need of eye and vision care, contribute to the advancement 
of the optometry profession as a researcher, and establish clinics in underserved areas to increase 
access to quality vision care in these communities. 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The Director also determined that the Petitioner's proposed endeavor has substantial merit and 
national importance, satisfying Dhanasar's first prong.2 However, the Director concluded the Petitioner 
had not established eligibility for a national interest waiver because she did not show that she is 
well-positioned to advance her proposed endeavor and that, on balance, waiving the job offer 
requirement would benefit the United States, as required under Dhanasar 's second and third prongs. 
A. Well Positioned to Advance the Proposed Endeavor 
The Director's decision identified the relevant evidence submitted by the Petitioner pertaining to 
Dhanasar 's second prong, including school documents, a resume, a personal future plan and an 
updated personal future plan ("future plan"), expert opinion letters, and letters of recommendation. 
The Director acknowledged the evidence reflected the Petitioner's education and success in her career 
but determined this evidence, by itself, was not sufficient to establish she is wel I-positioned to advance 
her proposed endeavor as required under Dhanasar's second prong and that the record otherwise 
lacked evidence of her progress towards achieving the goals of her proposed endeavor. 
2 The Director determined without analysis that the Petitioner established her proposed endeavor is of substantial merit 
and national importance. Based on our de novo review of the record, we disagree with the Director's determination that 
the Petitioner established her endeavor is nationally important. The record does not establish that the Petitioner's proposed 
endeavor has broader implications to the field of optometry beyond her own clients and business or that it has significant 
potential to employ U.S. workers or other substantial positive economic effects, commensurate with national importance 
as contemplated by Dhanasar. Matter of Dhanasar, 26 l&N Dec. at 889-89. However, because we agree the Petitioner 
has not established she is well-positioned to advance her endeavor, we need not address the national importance of her 
endeavor in our analysis here. 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 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). 
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On appeal, the Petitioner submitted a brief discussing evidence from the record below and re-asserting 
her arguments of eligibility. The Petitioner also asserts the Director did not apply the preponderance 
of the evidence standard in adjudicating her petition and instead held the Petitioner to a higher burden 
of proof. According to the Petitioner, there is no checklist of factors to establish whether an individual 
is well-positioned and the Director's decision was "based on the omission of factors relevant [to] the 
analysis," rather than weighing the evidence provided. Our review indicates the Director properly 
considered the petition and relevant evidence under the applicable preponderance of the evidence 
standard. While the Petitioner is correct that there is no specific checklist of factors she needs to show 
to establish she is well-positioned to advance her endeavor, she has not demonstrated that the evidence 
she has submitted meets Dhanasar's second prong by a preponderance of the evidence. 
To determine whether a petitioner is well-positioned to advance their proposed endeavor, we consider 
factors including, but not limited to: their 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. Matter of Dhanasar, 26 l&N Dec. at 890; see generally 6 USCIS Policy Manual 
F.5(D)(4), https://www.uscis.gov/policymanual (discussing, as guidance, specific evidentiary 
considerations for entrepreneurs and describing, as guidance, the types of evidence that may be 
considered, identifying degrees, certifications, licenses, letters of experience as one category of many). 
On appeal, the Petitioner asserts that her education, skills, and work history clearly evidence her skills, 
knowledge, and record of success, and thereby establishes that she is well-positioned to advance her 
proposed endeavor of working as an optometrist specialist, contributing to the advancement of the 
optometry profession as a researcher, and establishing clinics in underserved areas. The Petitioner 
describes her education and degree in optometry as evidence of her being well-positioned to advance 
her endeavor. However, holding a degree is just one factor in assessing whether a petitioner is well­
positioned. See generally 6 USCIS Policy Manual, supra, at F.5(D)(2) (explaining, as guidance, a 
degree alone is not a basis to determine that a person is well-positioned to advance the proposed 
endeavor). The Petitioner asserts she also has held an active professional license in optometry in 
Colombia since July 2016. However, in the record below, she also stated that she does not have her 
license to practice optometry in the United States. While she claimed she would be permitted to "work 
fully as an optometrist in the state where [she] receive[s] [her] license, and in any state, if any, where 
there is license reciprocity" the record does not contain any evidence of her obtaining any necessary 
licensure here in the United States to enable her to work as an optometrist. 
The Petitioner also refers to her letters of recommendation, her future plan, and expert letters and 
asserts this evidence emphasizes her record of success, expertise, and contributions to patient care. 
She highlights parts of the recommendation letters that discuss how she has helped treat countless 
patients; worked with precision; performed academic and commercial training for her employers; 
contributed extensively to the distribution of and training on products at clinics and stores in Colombia; 
received national recognition for having the highest sales growth for contact lenses; and developed 
marketing strategies. The Petitioner also quotes from one of her expert letters, which stated she has, 
a history of success driving product sales within the industry and her proactive initiative, skills, and 
business expertise will be valuable to the U.S. market. The Petitioner also submits a recommendation 
letter highlighting her experience of providing vision testing for new recruits in the Colombian 
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National Navy and submitted a recommendation letter describing her work as integral to the health 
and security of Colombia. The Petitioner also discusses her earned remuneration for her services as 
evidence of her success. 
We acknowledge that the Petitioner's evidence demonstrates she is an accomplished optometrist and 
sales representative with a record of success in working as an optometrist specialist in Colombia. 
However, the Petitioner's clinical duties as an optometrist and her sales and training experience 
address only one part of her proposed endeavor. As discussed below, the evidence of her education, 
skills, knowledge, and claimed record of success are not sufficient to support she would be 
well-positioned to advance her endeavor, as it relates to establishing clinics in underserved areas, 
which is integral to her being able to perform the clinical portion of her proposed endeavor, or to 
contribute to the advancement of the optometry profession as a researcher. 
The Petitioner quotes from her future plan to demonstrate her progress towards achieving her proposed 
endeavor. In her future plan, she stated she co-owned one of the companies she worked for and ran 
the business, managed employees, provided customer service functions and promoted sales. In the 
future plan, she relies on one of the recommendation letters from a former colleague, asserting the 
letter demonstrates she is acapable, experienced and qualified business professional who can own and 
manage her own optician clinic to great success. The Petitioner also relies on another recommendation 
letter from another colleague, asserting the letter establishes her reputation in the field because the 
author, a new owner of a company, stated the Petitioner was the only optometrist that came to mind 
when opening her office due to her skill and desire to improve people's eye health. We acknowledge 
this evidence of past entrepreneurial activity. However, the Petitioner has not submitted evidence that 
she currently owns and is running a clinic in the United States, and neither author of these letters 
discussed the Petitioner's business acumen, her ability to run a business and manage others, the success 
of the business she claims to have co-owned, or any specific examples of how she is well-positioned 
to advance her endeavor of establishing clinics in underserved areas of the United States, e.g., evidence 
that she actually established the business she was co-owner of and held shares in, that the business 
was in an underserved area. See generally 6 USCIS Policy Manual, supra, at F.5(0)(4) (discussing, 
as guidance, that an entrepreneur petitioner may submit evidence of ownership and role in a U.S.­
based entity; evidence establishing the petitioner's past entrepreneurial achievements corroborating 
projections of future work in the national interest as favorable factors in establishing the petitioner is 
well-positioned to advance the endeavor). 
In her future plan, she also explained that she plans to contribute to the advancement of the optometry 
profession through academic publications and presentations at scientific conferences and events held 
b the industr . She describes co- ublishin a thesis as art of her de ree re uirement, entitled 
According to the Petitioner, her thesis was in an area with few 
studies in Colombia, despite the necessity for updated information that meets the characteristics of 
professionals in the health sector. However, the Petitioner did not submit documentation 
demonstrating a strong citation history of her work or excerpts of published articles showing positive 
discourse around, or adoption of, her work to demonstrate progress towards achieving her proposed 
endeavor of contributing to the advancement of the optometry profession as a researcher. The 
Petitioner also did not describe performing research after completing her thesis. In sum, the 
Petitioner's evidence does not sufficiently corroborate her assertions of past achievement to 
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demonstrate progress towards her proposed endeavor and, as a result, that she is well-positioned to 
advance her proposed endeavor. 
As discussed above, Dhanasar identifies other relevant evidence a petitioner may submit to establish 
they are well-positioned to advance their proposed endeavor, including a business or model plan for 
future activities related to the proposed endeavor or evidence demonstrating progress towards 
achieving the proposed endeavor. Matter of Dhanasar, 26 l&N Dec. at 890. The Petitioner claims 
her future plan represents her business or model plan. However, the documents do not specify future 
activities related to the proposed endeavor of researching and establishing clinics. For example, the 
Petitioner's future plan does not provide specific details of what future research she plans on pursuing 
to contribute to the advancement of the optometry profession or otherwise identify the steps she has 
taken or intends to take towards advancing her research plans. Similarly, the future plan documents 
do not provide details on how she plans to establish clinics in underserved areas. In the absence of a 
specific prospective plan or explanation by the Petitioner, it is unclear, for example, what role the 
Petitioner intends to have in her clinics, and, as a result, what relevance her sales skills, for example, 
would have in advancing her proposed endeavor. 
The Petitioner also has not provided evidence of interest of potential customers, users, investors, or 
other relevant entities or individuals in her proposed endeavor, particularly with respect to her 
intentions to engage in research and establish clinics, to further her assertion that she is well-positioned 
to advance her endeavor. Id. at 890. 
We have examined the evidence relating to the remaining second prong factors set forth in Dhanasar, 
including the Petitioner's education, skills, knowledge; progress towards achieving the goals of the 
proposed endeavor; and a model or plan for future activities. Id. at 890. Based on our de nova review 
of the evidence, the record is insufficient to demonstrate that the Petitioner is well-positioned to 
advance her proposed endeavor and the Petitioner has not established that she satisfies the second 
prong of the Dhanasar framework. 
B. Whether on Balance a Waiver is Beneficial 
The third prong requires a 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. As we have 
concluded the Petitioner has not demonstrated she is well-positioned to advance her proposed 
endeavor, we reserve the Petitioner's arguments regarding whether she has demonstrated the third 
Dhanasar prong. See INS v. Bagamasbad, 429 U.S. at 25 (stating that agencies are not required to 
make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also 
Matter of L-A-C-, 26 l&N Dec. at 526 n.7 (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). 
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Ill. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we find 
that she has not established she is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is dismissed. 
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