dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 24, 2023 In Re: 27674221 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist , seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree . See Immigration and 
Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a 
national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification . See section 203(b)(2)(B)(i) of the Act, 8 U.S .C. § 1153(b)(2)(B)(i) . 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 , concluding that the record did not 
establish that the Petitioner qualifies for a national interest waiver. While the Director determined that 
the Petitioner's proposed endeavor is of substantial merit, he concluded that the endeavor is not of 
national importance . The Director also concluded that the Petitioner has not establi shed 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. 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 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. 
An advanced degree is any United States academic or professional degree or a foreign equivalent 
degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master 's 
degree . 8 C.F.R. § 204.5(k)(2) . 
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." Id. 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 USCIS may, as matter of discretion, 1 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. 2 
II. ADVANCED DEGREE 
Neither the request for evidence issued by the Director nor the subsequent denial notice provided a 
determination of whether the Petitioner submitted sufficient evidence to show that she is a member of 
the professions holding an advanced degree. Therefore, we will reserve the issue of whether she 
qualifies for the underlying EB-2 classification. 
III. NATIONAL INTEREST W AIYER 
The Director determined that the Petitioner did not meet the first or third prongs of the Dhanasar 
framework. On appeal, the Petitioner alleges that, rather than applying the governing standard of 
review, preponderance of the evidence, 3 the Director "imposed novel substantive and evidentiary 
requirements beyond those set forth in regulations." Although the Petitioner asserts that she has 
provided evidence sufficient to demonstrate her eligibility for a national interest waiver, she does not 
further explain or identify any specific instance in which the Director denied her petition applying a 
standard of proof other than that of preponderance of the evidence. 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of her endeavor in order to establish her eligibility under the 
first prong of the Dhanasar analytical framework. The first prong, 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. In determining whether the proposed endeavor has 
national importance, we consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. 
The Petitioner, who was previously employed as a physiotherapist in Brazil, intends to provide 
physical therapy services in I I Florida. The Petitioner initially described her proposed 
endeavor as follows: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 See INS v. Cardoza-Foncesca, 480 U.S. 421,431 (1987) (discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
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My career plan in the United States is to work with a health care facility to provide 
expert advice and treatment to patients, in addition to possibly working to teach new 
Physical Therapists. My experience will allow for even more highly skilled physical 
therapists to enter the healthcare field in the U.S, which will curb the shortage, increase 
revenue, benefit the economy, and enhance overall patient health .... 
My specific endeavor will potentially impact the U.S. in the following ways: 
• Fill a position as a Physical Therapist that is vacant due to a high demand for 
physical therapists but lack of qualified physical therapists; 
• Provide patients with a proper diagnosis; 
• Educate other physical therapists on proper techniques and treatments; and 
• Monitor and manage other therapists, assistants, and others involved m the 
diagnosis and recovery process. 
Economic Benefits 
• Optimizing the lives of patients that suffer from illnesses and injuries; 
• Reduce the amount of time patients spend in the hospital; and, 
• Increase the quality of life of patients dealing with different illnesses and injuries 
through personalized treatment, allowing them to participate in the community. 
Social Benefits 
• Improve comfort and health of patients; 
• Minimize use and reliance of assistive devices; and, 
• Increase overall morale and mobility of patients through treatment. 
Regarding the first prong, the Director found that the proposed endeavor had substantial merit; however, 
the Director issued a request for evidence (RFE) to, in part, establish the national importance of the 
proposed endeavor. In response, the Petitioner provided a statement and a business plan describing her 
intention to "develop a health care services company,~--------~in the state of Florida" 
( emphasis in the original), where she "will generate jobs for U.S. workers, as well as significant and 
profitable opportunities for the national economy." The Petitioner states that she intends to serve as the 
company's chief executive officer, which she describes in her business plan as both "owner" and "primary 
consultant." The Petitioner's business plan states that the "aim is to provide post rehabilitation services 
to patients discharged from the hospitals and Skilled Nursing Facilities." The business plan shows that 
she intends to hire registered nurses, licensed clinical social workers, licensed practical nurses, physical 
therapists, medical assistants, a director of operations, an intake coordinator, a billing specialist, a field 
marketing representative, and a scheduler, among other positions. 
The Petitioner's initial description of her proposed endeavor did not indicate plans to form a company; 
the Petitioner initially intended to "work with a health care facility" and to possibly provide instruction to 
new physical therapists. We conclude that the RFE response presented a new set of facts regarding the 
proposed endeavor, which is material to eligibility for a national interest waiver. A visa petition may 
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not be approved based on speculation of future eligibility or after a petitioner becomes eligible under 
a new set of facts. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). The Petitioner 
must meet eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). The 
Petitioner's plans to establish and manage a company were presented after the filing date; as such, the 
amended endeavor cannot retroactively establish eligibility. 
In response to the Director's request for evidence to demonstrate how her services would rise to the 
level of national importance, the Petitioner has materially changed her proposed endeavor. A 
petitioner may not make material changes to a petition that has already been filed to make an 
apparently deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 
169, 175 (Comm'r 1998). Notably, the Petitioner does not explain how she would allocate her time 
between performing physical therapy services initially described as part of her stated endeavor, if any, 
and serving in a managerial role at her company. Accordingly, we conclude that both the focus of her 
endeavor as well as her field of endeavor have materially changed. If significant material changes are 
made to the initial request for approval, a petitioner must file a new petition rather than seek approval 
of a petition that is not supported by the facts in the record. 8 C.F.R. § 103.2(b )(1). For these reasons, 
the petition may not be approved. 
In determining national importance, the relevant question is not the importance of the 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. 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. 
A shortage of physical therapists in the United States does not render the proposed endeavor nationally 
important under the Dhanasar framework. 
To assess whether an individual qualifies for a national interest waiver, we must first rely on the 
specific proposed endeavor to determine whether it has both substantial merit and national importance 
under the Dhanasar analysis. Because the Petitioner has not provided consistent information 
regarding her proposed endeavor, we cannot conclude that her proposed endeavor has national 
importance. Even if the Petitioner had not materially changed her proposed endeavor, the evidence of 
record does not sufficiently demonstrate that her original endeavor to work as a physical therapist in 
a healthcare facility rises to a level commensurate with national importance. The Petitioner's original 
description of her intention to work as a physical therapist aligned with that of a successful healthcare 
worker providing, for example "personalized treatment" to patients and enhancing their quality of life. 
The Petitioner, however, did not provide an explanation of how her work as a physical therapist would 
have broader implications in the field or have substantial positive economic effects in a given location 
or for a specific population. She did not elaborate on her intention to "possibly" teach new physical 
therapists or otherwise explain how her employment as a single physical therapist would address a 
national shortage of individuals employed in the field. While we recognize that an endeavor to provide 
healthcare services has substantial merit, the Petitioner has not demonstrated that her original proposed 
endeavor is of national importance. 
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In addition, even if the Petitioner had presented her plans to establish and operate her business at the 
time of filing, which she did not, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of this revised endeavor under the first prong of the Dhanasar 
analytical framework. For example, the Petitioner's business plan provides a generalized description of 
the company's marketing and growth strategy inl IFlorida, as well as a forecast of anticipated 
case numbers and business expenses; there is no explanation, however, of the origins of those case 
estimates and business expenses or any indication of how they were calculated. In denying the petition, 
the Director concluded that the Petitioner had not demonstrated the national importance of her proposed 
endeavor, as the Petitioner's evidence did not show that her proposed work through the operation and 
management of her company would have broader implications at a level indicative of national 
importance. 
On appeal, the Petitioner submits a brief in which she insists that the Director's decision was in error and 
that the evidence of record establishes her eligibility for a national interest waiver. She reiterates that a 
part of the national importance ofher endeavor lies in the fact that there is a shortage of physical therapists 
in the United States. However, the Petitioner does not explain how her operation of a business 
employing an indeterminant number of physical therapists would alleviate a shortage at a nationally 
important level; her business plan does not specify the number of physical therapists to be hired or 
provide growth projections to demonstrate how the company will realistically hire physical therapists 
and other positions listed to develop and maintain a fully functional business. The Petitioner provides 
material related to the importance of hiring employees in the United States in the fields of science, 
technology, engineering, and mathematics-collectively known as STEM. We note that the practice 
of physical therapy directly benefits a small number of individual patients, in a manner comparable to 
the proposed teaching activity of the petitioner in Dhanasar. In that decision, we stated, "While STEM 
teaching has substantial merit in relation to U.S. educational interests, the record does not indicate by 
a preponderance of the evidence that the petitioner would be engaged in activities that would impact 
the field of STEM education more broadly." We therefore concluded that the teaching element of the 
proposed endeavor lacked evidence of national importance. Matter ofDhanasar, 26 I&N at 893. The 
impact of the Petitioner's work as either a business owner, physical therapist, or potential instructor­
or a combination of those occupations-appears to be similarly limited in scope. 
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. Although the 
Petitioner's statements reflect her intention to provide physical therapy services for her company's 
clients, she has not offered sufficient information and evidence to demonstrate that the prospective 
impact of her proposed endeavor rises to the level of national importance. 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. See Dhanasar, 26 I&N Dec. at 893. Here, we conclude 
that the record does not show that the Petitioner's revised proposed endeavor stands to sufficiently 
extend beyond her clientele to impact either the physical therapy or home healthcare industry more 
broadly at a level commensurate with national importance. 
In addition, the Petitioner has not demonstrated that her revised proposed endeavor has significant 
potential to employ U.S. workers or otherwise offers substantial positive economic effects for the 
nation. Specifically, she has not shown that her company's business activity stands to provide 
substantial economic benefits tol Ito Florida, or to the United States. We note that, while 
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not mentioned in the Petitioner's appeal brief: the cover letter included in the RFE response 
emphasizes potential investment interest that would positively affect the economy; however, there is 
no evidence present in the record that elaborates on any investment potential generated by the 
Petitioner's business proposal. The record does not demonstrate that the benefits to the regional or 
national economy resulting from the Petitioner's endeavor would reach the level of "substantial 
positive economic effects" contemplated by Dhanasar. Id. at 890. In addition, although the Petitioner 
asserts that her company will hire U.S. employees, she has not provided evidence to establish that the 
area in which the company will operate is economically depressed, that she would employ a significant 
population of workers in that area, or that her endeavor would offer the region or its population a 
substantial economic benefit through employment levels, business activity, or tax revenue. While the 
business plan provides a summary of positions that she intends to hire, the plan does not provide details 
concerning any growth intentions or projections. The Petitioner's unsupported statements are 
insufficient to meet her burden of proof. A petitioner must support assertions with relevant, probative, 
and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. While the Petitioner claims that 
her business "is ready to boost local economies, specifically in the underserved business zones of 
several states across the United States," she has not shown that the prospective impact of the services 
offered by her company represents a significant share of either the physical therapy or home healthcare 
market. The Petitioner has not demonstrated the national importance of her proposed endeavor under 
the first prong of the Dhanasar analytical framework. 
The record does not establish the national importance of the 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. Because the identified reasons for dismissal are dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve remaining arguments concerning eligibility 
under the Dhanasar framework. 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 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not demonstrated that her proposed endeavor has national importance. As the 
Petitioner has not met the requisite first prong of the Dhanasar analytical framework, she has not 
established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
The petition will remain denied. 
ORDER: The appeal is dismissed. 
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