dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
InRe: 9317321 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 16, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physical therapist, seeks second preference 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 EB-2 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 Petitioner qualified 
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. 
On appeal, the Petitioner submits a brief asserting that she is eligible for a national interest waiver. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 ofjob 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). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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, 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, USCIS 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 offer or for the 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 
national's contributions; and whether the national interest in the foreign national's contributions is 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 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. 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. 
Regarding her claim of eligibility under Dhanasar's first prong, the Petitioner indicated that "[s]he 
intends to open a mobile physical therapy business in Florida." 4 She stated that she plans to "engage in 
the business of mobile physical therapy within the rehabilitation industry. I Mobile Physical Therapy 
will perform all types of prescribed physical therapy in a patient's home. In addition, it will also offer 
fall prevention therapy to people over 55 that struggle with balance." The Petitioner explained that the 
cost of falls among older adults "is a national concern" and that her proposed work to provide 
rehabilitation and preventative services stands to reduce Medicare and Medicaid costs related to falls. 
She also asserted that her undertaking "will create 5 direct jobs" in the United States. 
The Petitioner presented the 2018 business plan torOMoh;Je Phvsical ThT1py which states that her 
company will provide "mobile physical therapy to residents in[ _ FL." This business plan 
includes market analyses, information about the company and its services, financial forecasts and 
projections, an explanation about startup funding, and a description of company ma
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agejent and 
personnel. Regarding future staffing, the Petitioner's business plan anticipates that Mobile 
Physical Therapy will employee five personnel in each of its first three years. In addition, her plan offers 
sales projections of $764,282 in year one, $1,892,071 in year two, and $2,081,278 in year three. The 
Petitioner, however, does not adequately explain how these sales forecasts were calculated. 
With respect to yartupl funding, the business plan states on page 13 that "[the Petitioner] will be the 
sole investor for Mobile Physical Therapy" and that "Total Funding Required" is $110,000. 5 In 
response to the Director's RFE, the Petitioner provided a March 2018 letter from I stating 
its "intention to invest $110,000 on 0Physical Therapy in exchange for a minority capital interest." 6 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner noted that she is "in the process of obtaining" her physical therapy license in the United States and provided 
an "Authorization to Test" notice from the Federation of State Boards of Physical Therapy. This notice informed the 
Petitioner that she was required to schedule and take her examination on July 25, 2019. 
5 The Director issued a request for evidence (RFE) informing the Petitioner that she "did not submit evidence to establish 
that [she] has the required start-up costs for the business." 
6 The Director's decision noted that the Petitioner's spouse is the manager ofl land that the record did not 
include evidence demonstrating his "company has $110,000 in funds available to invest in [ the Petitioner's] mobile 
physical therapy business." In her appeal briet: the Petitioner argues that "if the adjudicating officer was not sure about 
the company having the fonds available, the Service should have issued another request for evidence and the Petitioner 
could have provided the evidence of the ability to invest the amount of $110,000." The Director may, as a matter of 
3 
The record includes information about the increasing number of people age 65 and over in the United 
States, the elderly population in Florida and I land its projected growth, costs for falls 
billed to Medicare, the aging population of baby boomers as a driver of healthcare occupation growth, 
the projected increase in U.S. home health employment, and the difficulty of filling physical therapist 
positions. The Petitioner also provided information about falls as a leading cause of fatal and nonfatal 
injuries among those over age 65, new job growth in healthcare support occupations and healthcare 
practitioners, U.S. healthcare costs attributable to falls suffered by the elderly population, and 
increased demand for physical therapy attributable to aging baby boomers. 7 The record therefore 
supports the Director's determination that the Petitioner's proposed work to operate a physical therapy 
business has substantial merit. 
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. 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. at 890. 
The Petitioner argues on appeal that her "field has a problem of shortage of professionals, as well as 
an excess expenditure with people with balance problems." She contends that because she "proposes 
to insert more than one physical therapist in the marketplace, plus create job positions helping the 
economy, and address a problem which would save the government funds in healthcare," her proposed 
endeavor offers broader implications beyond her company's employees and clientele. The Petitioner 
further states that she "is availing herself to pursue her PT license in the U.S., as well as creating a 
business to employ other physical therapists," and that her undertaking stands to "fill the gap of 33,000 
unfilled jobs, one physical therapist at a time." She also maintains that her proposed work involving 
"rehabilitation and preventative services . .. will contribute to reduc[ing] Medicare and Medicaid['s] 
astonishing costs related to falls." Additionally, the Petitioner asserts that her proposed endeavor "will 
create 5 direct jobs" that this "initial change in economic activity results in other rounds of spending 
thus creating additional jobs in the region." 
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 create and operate a mobile physical therapy business, 
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 
discretion, request additional evidence if the record does not establish eligibility, but he is not required to do so. See 
8 C.F.R. § 103.2(b)(8). Regardless, the Petitioner has had an opportunity to address the Director 's finding on appeal, and 
we review the record on a de nova basis. The Petitioner 's appellate submission, however, does not include evidence to 
corroborate the Petitioner 's claim thad !has $110,000 in funds available to invest in her business. 
7 For example, the Petitioner offered an estimate from the American Physical Therapy Association that "in 2016, demand 
for full-time physical therapists will exceed 229,000, with a pool ofcandidates of around 196,000 - creating a gap of33 ,000 
unfilled jobs ." 
4 
petitioner's teaching activities did not rise to the level of having national importance because they 
would not impact his field more broadly. Id. at 893. Here, we find the record does not show that the 
Petitioner's proposed endeavor stands to sufficiently extend beyond her business and its clientele to 
impact her field, the healthc are industry, or the U.S . economy more broadly at a level commensurate 
with national importance. 
Furthermore , the Petitioner has not demonstrated that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation . Specificall y, she has not shown that her company's future staffing levels and 
business activity staid to Jrovide substantial economic benefits in Florida or the United States. While 
the sales forecast for Mobile Physical Therapy indicates that the company has growth potential, it 
does not demonstrate that benefits to the regional or national economy resulting from the Petitioner's 
undertaking 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 offered sufficient evidence that the area where I I Mobile Physical Therapy operates 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 or business activity. Nor has the Petitioner demonstrated that the reduced 
healthcare costs attributable to her company 's future rehabilitation and preventative services stand to 
substantially affect Medicare and Medicaid savings in Florida or nationally . 
In addition , while the Petitioner offered information indicating that the United States faces a shortage 
of physical therapists , this reported shortage does not render the work of an individual physical therapy 
business operator nationally important under the Dhanasar framework. With respect to the Petitioner's 
intention to work as a licensed physical therapist , the U.S. Department of Labor addresses shortages 
of qualified workers through the labor certification process . Accordingly, a shortage alone does not 
demonstrate that waiving the requirement of a labor certification would benefit the United States. 
Here, the Petitioner has not shown that her proposed work stands to have wider implications in the field 
of physical therapy or the U.S. healthcare industry. Her propos ed work therefore does not meet the first 
prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar , therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we conclude 
that she has not established she is eligible for or otherwise merits a national interest waiver as a matter 
of discretion . The appeal will be dismissed for the above stated reasons , with each considered as an 
independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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