dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re: 23069391 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 4, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree , Exceptional Ability, National 
Interest Waiver) 
The Petitioner , a physical therapist and doula , who provides support to mothers during and after 
pregnancy , seeks classification as a member of the professions holding an advanced degree and an 
individual of exceptional ability in the sciences, arts, or business. 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 employment-based , "EB-2" immigrant 
classification. See section 203(b)(2)(B)(i) of the Act. 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 Petitioner qualifies 
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. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. 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. Because this classification requires that the 
individual's services be sought by a U.S. employer , a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available . .. to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer-
(i) National interest waiver. [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the requirements 
of subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016) . Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, users may, as a matter of discretion, 1 grant a national interest 
waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both 
substantial merit and national importance; (2) that the foreign national is well positioned to advance 
the proposed endeavor; and (3) 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 first prong, regarding substantial merit and national importance, focuses on the specific endeavor 
that the foreign national 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. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's 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. 
The third prong requires the 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. In performing 
this analysis, users may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offerorforthe petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
1 See also Poursina v. USCIS, 936F.3d 868 (9th Cir.2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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. 2 
II. ANALYSIS 
The Director determined that the Petitioner qualifies as a member of the professions with an advanced 
degree; her occupation qualifies as a profession, and she holds a baccalaureate degree and at least five 
years of progressive post-baccalaureate experience equivalent to a master's degree. Therefore, we 
need not examine the Petitioner's parallel claim of exceptional ability. 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. 
The Beneficiary earned a bachelor's degree in physical therapy in 2005, and has since undertaken 
specialized training in obstetrics, sports physical therapy, and other fields such as acupuncture. She 
practiced physical therapy in Brazil from 2006 to 2017, both on her own and through clinics. 
The Director concluded that the Petitioner had not satisfied any of the requirements of the Dhanasar 
framework. We conclude that the proposed endeavor likely has substantial merit, but for the reasons 
discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated the 
national importance of her proposed endeavor under the first prong of the Dhanasar analytical 
framework. 3 
Initially, the Petitioner stated: "My career plan in the United States is to work with a health care 
facility to provide expert advice and treatment to patients." The Petitioner did not provide details 
about the proposed endeavor beyond describing the duties of a physical therapist and asserting that 
she will "[m]onitor and manage other therapists, assistants, and others involved in the diagnosis and 
recovery process." Thus, the proposed endeavor, as originally described, amounted to an intention to 
continue working as a physical therapist. The Petitioner did not specify a particular prospective 
employer, but asserted that demand for physical therapists exceeds the supply. 
A professor of anatomy , physiology, and microbiology at the Swedish Institute provided an expert 
opinion letter, asserting that the Petitioner's proposed endeavor is of national importance because of 
"a major shortage of Physical Therapists in the United States," and because the Petitioner's "intimate 
knowledge of the Brazilian healthcare sector" would benefit "U.S. companies doing business or 
planning to do business in Brazil." The Petitioner's own description of her proposed endeavor did not 
explain how her work treating patients would affect trade between the United States and Brazil, or be 
relevant to U.S. companies doing business in or with Brazil. Every professional who trained abroad 
brings with them a knowledge of how the profession is practiced in their home country, but it is unclear 
how such knowledge brings national importance to her proposed endeavor. The Petitioner's 
knowledge of Brazilian health care is not a distinguishing factor that qualifies her for the special 
benefit of the national interest waiver. 
2 SeeDhanasar , 26l&NDec. at 888-91, for elaboration on these three prongs. 
3 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
Also, the writer did not exp lain how the work of one physical therapist would alleviate a shortage at a 
nationally important level. 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 of Dhanasar, 26 I&N at 893. The impact of the Petitioner's work, 
both as a therapist and as an instructor, appears to be similarly limited in scope. 
The Petitioner submitted infonnation establishing the overall imp01iance of physical therapy, but the 
collective importance of all practitioners does not demonstrate the national importance of the 
Petitioner's specific proposed endeavor. The Petitioner also submitted background information about 
opioid abuse and trafficking, but while pain management is one goal of physical therapy, the Petitioner 
did not explain how her work as a physical therapist would have an impact on the opioid crisis that 
would rise to the level of national importance. 
The Director issued a request for evidence, stating: "In determining national importance, the relevant 
question is not the importance of the industry in which the individual will work," but rather the 
individual's specific endeavor. The Director requested more details about the proposed endeavor, and 
stated that the Petitioner "did not off er sufficient evidence to demonstrate that the prospective impact 
of her proposed endeavor raises [sic] to the level of national importance." 
In response, the Petitioner stated: 
My plan is to work as a Physical Therapist in the U.S. and share my methodology in 
applying fast and safe rehabilitation protocols that allow the patients to recover faster 
from the postpartum and resume their daily activities. I intend to develop effective 
techniques that will improve women's health care here in the country and change the 
way physical therapists are perceived in the delivery room . 
. . . After an assessment of each patient, I will design and implement a plan that will 
help to improve the health of the mothers, prevent future problems, and help them 
recover their bodies' shape and functionality. 
Moreover, my experience has allowed me to share my knowledge and teach lectures 
and offer workshops in Brazil and the U.S. on relevant topics in women's health .... 
The Petitioner submitted a business plan for I indicating that the company would 
begin operations in early 2022, and that the Petitioner "will be the CEO" ( chief executive officer).4 
The business plan indicates that the company would offer "Physiotherapy Services, focused [on] 
4 Although the Petitioner referred tol las a limited liability company whjch is a specific type oflegal entity 
requiringregistra tion with the local jurisdiction, the record does not show that exists, or did exist at the 
time of filing, as a legal entity. 
4 
Pregnancy and Birth Physiotherapies, throughout the American territory," employing 13 people in its 
first year, reaching 31 after the fifth year, while creating 155 indirect jobs. The proposed 
organizational chart in the business plan refers to a "network of entrepreneurs and entrepreneurs [sic] 
associated with the company, whether in the form of partners or franchisees." The plan indicates that 
"the main benefit provided by THE COMPANY is the generation of new wealth in the American 
economy and society," and states that the Petitioner "intends to create ... a technology-based and 
agile management company." 
The Petitioner's own revised description of her proposed endeavor, excerpted above, differs 
significantly from the business plan. It does not include any mention ofl I or any general 
discussion of plans for the Petitioner to start her own business. As quoted in the indented passage 
above, the Petitioner stated that her "plan is to work as a Physical Therapist," rather than as the CEO 
of a therapy clinic. 
The business plan is dated March 2021, more than two years after she filed the Form 1-140 petition in 
April 2019. The initial filing from 2019 did not include evidence that the Petitioner planned to start 
such a company, involving a "network of entrepreneurs." The business plan marks a significant 
deviation not only from the Petitioner's initial claims in 2019, but from her revised statement dated 
March 2021, the same month as the business plan. The business plan amounts not to a revision of her 
proposed endeavor, but to what appears to be a fundamentally new claim. A petitioner must meet all 
eligibility requirements at the time of filing the petition. See 8 C.F.R. § 103.2(b )(1). A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). The business 
plan for I has negligible evidentiary weight with respect to the proposed endeavor at the 
time of filing. 
The Director denied the petition, stating that "the record does not establish that, beyond the benefits 
provided to its clients and employees, the Petitioner's proposed endeavor stands to have broader 
implications rising to the level of having national importance or that it would offer substantial positive 
economic effects." The Director concluded that "the petitioner has not demonstrated that the 
[proposed endeavor] has significant potential to employ U.S. workers or otherwise substantial positive 
economic effects," and that the Petitioner had not established that the proposed endeavor has "broader 
implications rising to the level of having national importance," "beyond the benefits provided to [1he 
Petitioner's] clients and employees." 
On appeal, the Petitioner asserts that her '·proposed endeavor is national in scope, and will have broad 
implications for his [sic] served industries, as his [sic] work functions will produce substantially 
positive economic oppmiunities for the nation, due to the ripple effects of his [sic] professional 
activities." Apart from the misplaced masculine pronouns, this passage is vague and generic, with no 
specific discussion of the proposed endeavor, citing no evidence and providing no details about the 
claimed "ripple effects" of the Petitioner's intended work as a physical therapist. 
The Petitioner has submitted ample information and evidence about the physical therapy industry as 
an aggregate whole, but the Petitioner has offered only vague speculation as to how her work in 
particular will have national importance. 
5 
On appeal, the Petitioner asserts that she had documented "a steep shortage in the U.S. of professionals 
in the field," but the Petitioner does not address the Director's specific determination that "a shortage 
of physical therapists in the United States does not render [the] proposed endeavor nationally 
important under the Dhanasar frarnewor[k]. In fact, such shortages of qualified workers are directly 
addressed by the U.S. Department of Labor [DOL] through the labor certification process." 5 
For the reasons discussed, we conclude that the Petitioner has not established the national importance 
of her proposed endeavor. Because this issue, by itself, detennines the outcome of the appeal, we 
decline to reach, and hereby reserve, the appellate arguments regarding the remaining prongs of the 
Dhanasar framework. 6 
III. CONCLUSION 
Because the Petitioner has not met the required first prong of the Dhanasar analytical framew01k, we 
conclude that she has not established eligibility for a national interest waiver as a matter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
5 To the Director's observation, we add that DOL regulations include another provision for physical therapists, by 
includingthat occupation in Group I ofSchedule A. A petition for a beneficiary in a Schedule A, Group I occupation does 
not require an individual labor certification, but such a petition must be filed by the intending U.S. employer. Further 
details appearinDOLregulations at20 C.F.R. §§ 656.5 and656.15 and6 USCIS Policy ManualE.7. Schedule A Group 
I precertification is not a waiver of the job offerrequirement. Rather, Schedule A Group I precertification and the national 
interest waiver are mutually exclusive processes with different procedures andevidentiary requirements. For these reasons, 
a shortage of workers in a Schedule A, Group I occupation is not a basis fora national interest waiver. 
6 See INS v. Bagamasbad, 429 U.S. 24, 25 (197 6) ("courts and agencies are not required to make findings on issues the 
decision of which is unnecessary 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). 
6