dismissed EB-2 NIW Case: Orthopedics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 15, 2023 In Re: 28963743 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physician specializing in orthopedics and traumatology, seeks an employment-based 
second preference (EB-2) immigrant classification as an individual with 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 petition, concluding that the record did not 
establish that the proposed endeavor had substantial merit and national importance, that the petitioner 
was not well positioned to advance the endeavor, and that it would not be beneficial to the United 
States to waive the job offer requirement. 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 a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 1 
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 demonstrate 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. While neither the statute nor the pertinent regulations define the term 
"national interest," Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework 
for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and 
1 While we may not discuss each piece of evidence individually, we have reviewed and considered each one. 
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 
A. EB-2 Classification: Advanced Degree 
The Director did not address whether the Petitioner met the requirements for the underlying EB-2 
classification. The Petitioner stated he was qualified for the EB-2 classification because he had the 
foreign equivalent to a bachelor's degree and 5 years of progressive experience. The record contains 
evidence that the Petitioner obtained a title of physician (titulo de medico) degree from thel I 
in Brazil and completed his medical residency in orthopedics and traumatology. ~-------~ The record also includes reference letters in support of his experience as a doctor in Brazil, and an 
academic evaluation that his foreign degree is equivalent to a master of science in medical science. 
As the record does not establish by a preponderance of the evidence that the Petitioner is eligible for 
or otherwise merits a national interest waiver as a matter of discretion, we will reserve the issue of the 
Petitioner's eligibility for the EB-2 classification.3 
B. National Interest Waiver 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual 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. 
1. Substantial Merit 
The Director stated the Petitioner's proposed endeavor was not specific enough to evaluate its 
substantial merit. We disagree and conclude that the record sufficiently establishes the proposed 
endeavor and there is substantial merit to his endeavor. For substantial merit, we may consider 
evidence of the endeavor's potential significant economic impact, however, "endeavors related to 
research, pure science, and the furtherance of human knowledge may qualify, whether or not the 
potential accomplishments in those fields are likely to translate into economic benefits for the United 
States." Dhanasar, 26 I&N Dec. at 889. 
2 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 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 olL-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). 
2 
In the professional plan initially submitted with Form I-140, the Petitioner stated that his proposed 
endeavor was: 
[T]o bring my years of experience as a doctor and surgeon to the United States to help 
alleviate the increasing demand for such professionals. Specifically, I can: 
l. Work in any clinic or hospital system, and improve patients' quality of life; 
2. Provide training and support to other doctors and professionals in the industry; 
and/or; 
3. Serve as an instrnctor to students studying to enter the medical field. 
He further explained the types of injuries he will treat and their common occurrence in the United 
States and discussed a shortage of doctors in the United States that is projected to grow. The 
Petitioner's professional plan is supplemented by his resume and reference letters from other doctors 
in his field attesting to the Petitioner's experience, as well as an expert opinion letter, and industry 
reports and articles. Based on the evidence mentioned above, we conclude his proposed endeavor is 
of substantial merit as it relates to the medical field and furthers human knowledge through instructing 
others in his industry. 
2. National Importance 
In determining whether the proposed endeavor is of national importance, we consider its potential 
prospective impact. In following Dhanasar, we look for evidence that the proposed endeavor has 
significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to 
contribute to the advancement of a valuable technology or field of study. 
The Petitioner submitted industry reports and articles showing that there is a shortage of doctors in the 
United States and that this shortage is projected to increase in the coming years, along with the need 
for doctors increasing as the U.S. population grows and ages. He also provided information on the 
widespread nature of orthopedic injuries in the United States. However, a shortage of qualified 
professionals does not render the work of an individual physician or surgeon nationally important 
under the Dhanasar decision. Here, the Petitioner has not established that his specific proposed 
endeavor stands to broadly 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. 
Another issue the Petitioner discusses is that he will be saving lives, optimizing lifestyle by treating 
patients, and training the next generation of doctors through his proposed endeavor. Although we see 
the substantial merit in all the above, for a national importance determination, the scope of the 
proposed endeavor must rise to the level of national importance. The record does not establish that 
his proposed endeavor will have national or global implications within his field. 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 extend beyond his students to impact his field more 
broadly. Id. at 893. 
3 
We conclude the Petitioner has not shown that his proposed endeavor stands to sufficiently extend 
beyond his patients or students to impact the medical field at a level commensurate with national 
importance. Here, the Petitioner has not provided sufficient documentary evidence that his proposed 
endeavor would impact the medical industry more broadly rather than benefiting his patients and 
students. Without sufficient documentary evidence of the broader impact, the Petitioner's proposed 
endeavor does not meet the national importance element of the first prong of the Dhanasar framework. 
In addition, the Petitioner states in the appeal brief and expert opinion letter from his initial petition, 
that his proposed endeavor would have an economic impact. The appeal brief discusses the field of 
orthopedics and how treating patients can reduce their burden on society. The expert opinion letter 
discussed positive impact the medical field has on the economy with job creation, purchases of goods 
and services, and the generation of state and local taxes. For a national importance determination, the 
endeavor "may have national importance because it has national or even global implications within a 
particular field, such as certain improved manufacturing processes or medical advances." Id. at 889. 
It may also have "significant potential to employ U.S. workers" or "other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 890. The record shows how 
the field in general may have an economic impact, but it does not show how the Petitioner's specific 
endeavor will have substantial positive economic effects or national implications that rise to the level 
of having national importance. 
Lastly, the appeal brief states that the Petitioner could provide services in rnral or underserved areas 
that have a higher demand for physicians and that his impact could be more substantial depending on 
where he will be practicing. However, there is no information or evidence to substantiate the claim 
that he plans to work in a rural or underserved area. In addition, the Petitioner previously stated in 
response to a request for evidence that he was not applying for a physician national interest waiver 
under section 203(b )(2)(B)(ii) ofthe Act,4 which undermines his claim that he plans to provide services 
in a rural or underserved area. 
The evidence in the record does not establish the national importance ofhis proposed endeavor as required 
by the first prong of the Dhanasar precedent decision, therefore 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 his eligibility under the second 
and third prongs outlined in Dhanasar. See Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 
26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude that the Petitioner has not established that he is eligible for or otherwise merits a 
national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
4 Section 203(b)(2)(B)(ii) of the Act provides a national interest waiver for physicians who agree to work in underserved 
areas or at a U.S. Department of Veterans Affairs health care facility, and meet certain requirements. See 6 Policy 
Manual F .6(b ), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-6. 
4