dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 30, 2023 In Re: 28564497 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist, seeks 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 Petitioner qualified 
for classification as a member of the professions holding an advanced degree but 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. 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 l&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 a member of the professions holding an advanced 
degree 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. 
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, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates: (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that the noncitizen 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 
noncitizen 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. 
See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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 of a labor certification, would be in the national interest. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
Initially, the Petitioner described the endeavor as a plan to: 
continue to use my abilities as a [p]hysical [t]herapist to help meet the demand and 
ameliorate the shortage of healthcare professionals in the country, provide highly 
skilled services to esteemed physical therapy practices, provide educational lectures to 
empower other professionals in the field, participate and lead innovative projects, and 
improve the overall health of U.S. citizens. 
The Petitioner further asserted that her endeavor "will not only serve to improve the country's supply 
of skilled healthcare professionals, but also boost the U.S. economy and generate American jobs." We 
note that the Petitioner specifically stated at the time of filing that she "plan[ s] on contributing to meet 
the growing demand for professionals in the field by seeking employment opportunities with 
companies and practices that need to fill openings," not that she would found a physical therapy 
consulting company. 
In response to the Director's request for evidence (RFE), the Petitioner provided inconsistent 
information regarding what her proposed endeavor would entail. She reasserted that she "will treat 
and help patients improve posture, preventing back pain and often injuries caused by limbs in body 
asymmetry," and she further stated that she "will work in post-operative hospital ICU, working on the 
patient's recovery, promoting early discharge, caring for and guiding post-discharge care, and tracing 
a personalized protocol to achieve the patient's full recovery." The Petitioner also reasserted that she 
"will disseminate my knowledge to other professionals in the field." In contrast, though, the Petitioner 
stated that "[ t ]hrough her consulting services, [she] will help physical therapy clinics and practices 
improve their operations, streamline their workflows, and develop more effective treatment plans." 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
2 
Dec. 45, 49 (Reg'l Comm'r 1971). 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). Moreover, doubt cast on any aspect of a petitioner's proof may 
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
Because the Petitioner did not assert at the time of filing that her proposed endeavor would entail 
founding "consulting services," her statement in response to the Director's RFE that her endeavor 
would involve "her consulting services" presents a new set of facts that cannot establish eligibility. 
See 8 C.F.R. § 103.2(b)(l); see alsoMatterofKatigbak, 14 I&N Dec. at49; Matteroflzwnmi, 22 I&N 
Dec. at 176. Moreover, because the Petitioner stated in response to the Director's RFE that she would 
"work in post-operative hospital ICU" and that "her consulting services ... will help physical therapy 
clinics and practices improve their operations, streamline their workflows, and develop more effective 
treatment plans," the RFE response casts doubt regarding what the Petitioner's proposed endeavor 
would specifically entail-working in a hospital or operating a physical therapy consulting company. 
The doubt cast on what the Petitioner proposes her particular endeavor would entail undermines the 
reliability and sufficiency of the evidence submitted. See Matter ofHo, 19 I&N Dec. at 591. 
The Director acknowledged information in the record and concluded that "the [P]etitioner established 
that the proposed endeavor has substantial merit." However, the Director observed that "the 
[P]etitioner has not established that the proposed work has implications beyond a company ( or any 
prospective employers), business partners, alliances, and/or unidentified clients at a level sufficient to 
demonstrate the national importance of the endeavor." Consequently, the Director concluded that the 
record did not satisfy the first Dhanasar prong, without addressing the remainder of the Dhanasar 
prongs. 
On appeal, the Petitioner summarizes her prior academic and work experience. She also summarizes 
the duties of a physical therapist and the benefits of physical therapy for patients who require it. The 
Petitioner references publications in the record containing generalized information regarding the 
physical therapy industry. She also states that the proposed endeavor "[i]mpacts a matter that a 
government entity has described as having national importance or is subject [sic] of national 
initiatives." 
Also on appeal, the Petitioner again provides inconsistent information regarding what her proposed 
endeavor will entail. She reiterates that she "will work in post-operative hospital ICU, working on 
patient's [sic] recovery, promoting early discharge, caring for and guiding post-discharge care, and 
tracing a personalized protocol to achieve the patient's full recovery." However, she also reasserts 
that "[t]hrough her consulting services, [she] will help physical therapy clinics and practices improve 
their operations, streamline their workflows, and develop more effective treatment plans." She also 
states that, "[b ]y offering her expertise and guidance to other physical therapy professionals, [the 
Petitioner] will help improve the quality of care provided to patients across the country." The 
Petitioner further reasserts, as she statld in resftonse to the Director's RFE, that she will "help bring 
... the respirator invented in Brazil by technical lead I I .. to the U.S." 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
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"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or ... other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Petitioner's discussion of her prior academic and work experience is immaterial to whether the 
proposed endeavor has national importance. As noted, the relevant question is not the importance of 
the industry, field, or profession in which an individual will work; instead, to assess national 
importance, we focus on the "specific endeavor that the [noncitizen] proposes to undertake." Id. at 
889. Although an individual's prior academic and work experience is material to the secondDhanasar 
prong-whether an individual is well positioned to advance a proposed endeavor-it does not relate 
to the first Dhanasar prong-whether the "specific endeavor that the [ noncitizen] proposes to 
undertake [has] national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" or other broad implications, 
such as "significant potential to employ U.S. workers or ... other substantial positive economic 
effects, particularly in an economically depressed area. Id. at 888-91. Similarly, the Petitioner's 
discussion of the general duties of a physical therapist, the benefits of physical therapy for patients 
who require it, and publications in the record containing generalized information regarding the 
physical therapy industry do not address how the Petitioner's specific endeavor may have the type of 
broader implications contemplated by Dhanasar. See id. Relatedly, regardless of whether physical 
therapy "[i]mpacts a matter that a government entity has described as having national importance or 
is subject [sic] of national initiatives" a petitioner must still establish how "the specific endeavor that 
the [ noncitizen] proposes to undertake [has] national or even global implications within a particular 
field," "substantial positive economic effects, particularly in an economically depressed area," or other 
indicia of broader implications. Id. (emphasis added). Again, the importance of an industry, field, or 
profession in which an individual will work is not the relevant issue. Id. 
Next, we note again that the Petitioner's assertions both in response to the Director's RFE and on 
appeal present a new set of facts that cannot establish eligibility. See 8 C.F.R. § 103.2(b )(1 ); see also 
Matter ofKatigbak, 14 I&N Dec. at 49; Matter ofIzwnmi, 22 I&N Dec. at 176. Because the new set 
of facts regarding physical therapy consulting services cannot establish eligibility, we need not address 
them further. See id. Moreover, the Petitioner's inconsistent statements that she would "work in post­
operative hospital ICU" and that "her consulting services ... will help physical therapy clinics and 
practices improve their operations, streamline their workflows, and develop more effective treatment 
plans," cast doubt regarding what the Petitioner's proposed endeavor would specifically entail­
working in a hospital or operating a physical therapy consulting company. That doubt undermines the 
reliability and sufficiency of the evidence submitted. See Matter ofHo, 19 I&N Dec. at 591. 
Even to the extent that the record contains reliable, sufficient descriptions of what the proposed 
endeavor would entail that may establish eligibility, the record does not establish how the endeavor 
may have the type of broader implications contemplated by Dhanasar. See Dhanasar, 26 I&N Dec. 
at 889-90. The Petitioner's plan to "seek[] employment opportunities with companies and practices 
that need to fill openings" and provide physical therapy to patients of the healthcare facilit(ies) that 
employ her appears to benefit the Petitioner's potential employer(s) and patients. However, the record 
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does not establish how providing physical therapy to patients on an individual basis, according to a 
"personalized protocol to achieve the patient's full recovery," will have the type of broader 
implications contemplated by Dhanasar. See id. We acknowledge that the Petitioner asserted she 
would "provide educational lectures to empower other professionals in the field." However, the record 
does not establish how the Petitioner's educational lectures would have "national or even global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances." Id. at 889-90. Although the Petitioner asserted that her endeavor of 
working as a physical therapist would "boost the U.S. economy and generate American jobs," the 
record does not establish how her individual contribution to the healthcare industry would have an 
appreciable effect on the economy or workforce of any particular location to amount to the type of 
substantial positive economic effects contemplated by Dhanasar. See id. We also acknowledge that 
the Petitioner stated multiple times in the record that she will "help bring ... the respirator invented 
in Brazil byl Itechnical lead I I ... to the U.S." However, the Petitioner's own 
description of her involvement concedes that she did not invent the respirator in question and, thus, is 
not responsible for "certain improved manufacturing processes or medical advances" that the 
respirator may constitute, as addressed in Dhanasar. Therefore, she would not be responsible for 
whatever implications the respirator may have within the particular field of healthcare in general or 
physical therapy more specifically, nationally or even globally. See id. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, she is not eligible for a national interest waiver. 
We reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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 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 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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