dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re: 23692703 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 16, 2022 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a physical therapist, seeks second preference immigrant classification as either an 
advanced degree professional or an individual of exceptional ability in the sciences, arts or business, 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). After a petitioner 
has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion, 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. 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the national importance of the proposed endeavor or that a waiver would be in the national 
interest. The matter is now before us on appeal. 8 C.F.R. § 103.3. The Petitioner reasserts her 
eligibility, arguing that the Director did not consider the evidence properly and erred in the decision. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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 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. 
Section 10l{a)(32) of the Act, 8 USC § 1101(a)(32), provides that "[t]he term 'profession' shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(i i). 
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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 l&N Dec. 884 (AAO 2016). 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). Dhanasar states that after a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
A. Proposed Endeavor 
The Petitioner stated that her proposed endeavor is to work as a physical therapist "with a health care 
facility." After reviewing the evidence submitted with the petition, the Director issued a notice of 
intent to deny (NOi D). The NOi D notified the Petitioner that, among other deficiencies, the evidence 
did not establish the national importance of her proposed endeavor. In her NOID response, the 
Petitioner provided a business plan for opening and operating her own physiotherapy business in 
Florida. She stated that she will serve as the CEO of her own business, which involves "oversee[ing] 
and direct[ing] the activities of other employees." In the NOID response, the Petitioner discussed the 
medical device market and stated that she will work in physical therapy "with multi-national 
companies, providing indispensable guidance regarding national and cross-border contracts involving 
the development of different Healthcare ventures in the U.S. and Brazil." She further asserted that 
"Latin American countries have relevant investment opportunities and excellent shareholder returns 
and they are looking to expand such wealth in the U.S. My proposed endeavor will make this 
investment a reality, resulting in enhanced economic contributions in the United States." 
We conclude that the Petitioner has not identified a specific or consistent proposed endeavor. As 
described in her initial filing, her proposed endeavor involves working with a healthcare facility as a 
physical therapist. In contrast, the NOID response shifted the focus of her endeavor to business 
ownership in Florida and working for multinational companies involved in cross-border contracts. 
Additionally, the Petitioner indicated that she intends to expand into the medical device and foreign 
investment markets. While these endeavors may be connected through physical therapy, their focus 
is quite different. In Dhanasar, we held that a petitioner must identify "the specific endeavor that the 
foreign national proposes to undertake." Id. at 889. Here, the Petitioner has not clarified whether she 
intends to work with a health care facility as a physical therapist, run her own business, or work with 
multinational companies advising on cross-border contracts, nor has she adequately explained how 
she would allocate her time if she plans to pursue all these activities. Therefore, we conclude that the 
Petitioner has not identified a specific and consistent proposed endeavor. 
3 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner 
cannot materially change the proposed endeavor. USCIS regulations affirmatively require a petitioner 
to establish eligibility at the time the petition is filed. See 8 C.F.R. § 103.2(b)(1). Additionally, 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 Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l 
Comm'r 1978). Furthermore, 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 lzummi, 22 l&N Dec. 169, 
176 (Assoc. Comm'r 1998). If significant changes are made to the initial request for approval, the 
petitioner must file a new petition rather than seek approval of a petition that is not supported by the 
facts in the record. The record does not demonstrate that the Petitioner's business in Florida existed 
at the time of filing. As such, we conclude that it cannot serve as evidence to establish eligibility at 
the time of filing. We further conclude that the Petitioner has significantly and materially changed her 
initially described proposed endeavor. Therefore, she has not established eligibility for a national 
interest waiver. 
B. National Importance 
Even ignoring the changes and lack of specificity in the Petitioner's proposed endeavor and analyzing 
the Petitioner's eligibility based upon a proposed endeavor of operating a physical therapy business, 
we still conclude that the Petitioner has not established how the proposed endeavor would have 
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. 
Dhanasar, 26 l&N Dec. at 893. Similarly, we conclude that the Petitioner has not established how 
the proposed endeavor would impact the physical therapy field, reach beyond her clinic and patients, 
or rise to a level of national importance. 
The Petitioner emphasized the importance of physical therapy for addressing work-related injuries, 
pain management, sports rehabilitation, and the quality-of-life issues. She noted various social factors, 
such as the aging work force, increased medical bills, missed workdays, hospital readmissions, and 
the COVID-19 pandemic. In addition, the Petitioner highlighted the economic importance of physical 
therapists by providing statistics on the industry's high potential for growth, as well as the demand for 
and shortage of physical therapists. We agree that the field of physical therapy is important; however, 
this does not necessarily establish the national importance of the proposed endeavor. 
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 id. at 889. The record does not suggest that the 
Petitioner's patient care duties would meet the current demand for physical therapy, address the 
national physical therapist shortage, or otherwise operate on a scale rising to the level of national 
importance. Further, the Petitioner does not claim that her physical therapy methods are unavailable 
or different from those already offered in the United States. While we have considered the Petitioner's 
evidence, including statements, articles, reports, and I advisory opinion, it largely 
relates to the importance of the physical therapy profession or field, rather than the national importance 
of a specific proposed endeavor. Therefore, we conclude that the Petitioner has not sufficiently 
demonstrated how her proposed endeavor would impact the field of physical therapy or the nation. 
4 
Other evidence, such as the Petitioner's business plan, reference letters, and patient testimonial letters 
praise the Petitioner's education, experience, past success, personal qualities, and the results she 
achieved for patients. However, these factors relate to the second prong of the Dhanasar framework, 
which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue 
here is whether the Petitioner's specific endeavor has national importance under Dhanasar's first 
prong. 
The Petitioner emphasized the endeavor's "ripple" and "multiplier" effects. These effects represent 
how increased business activity creates direct and indirect jobs, which then boost household 
consumption and spending power, as well as federal and state tax revenue. The Petitioner projected 
that her business will create five jobs by the end of year three and generate $268,404 in payroll 
expenses by year five. While we agree that any basic business activity has the potential to positively 
impact the economy, we nevertheless conclude that the evidence does not demonstrate how five jobs 
and $268,404 in payroll expenses would confer benefits to the U.S. regional or national economy 
reaching the level of "substantial positive economic effects" contemplated by Dhanasar. See id. at 
890. Accordingly, we conclude that the record does not support a finding that the proposed endeavor 
will impact the economy on a scale rising to the level of national importance. 
On appeal, the Petitioner relies upon the evidence and arguments she previously submitted. To 
establish the proposed endeavor's national importance, she emphasizes the merits of the services she 
will provide, her personal and professional qualities, and the importance of the physical therapy field. 
While we agree that the field is important, as are issues of individual patient care and quality of life, 
it is not apparent from the evidence or arguments that the proposed endeavor has national importance. 
Therefore, for this additional reason, we conclude that the Petitioner has not met the requisite first 
prong of the Dhanasar framework. 
Ill. CONCLUSION 
The documentation in the record does not establish a specific and consistent proposed endeavor, nor 
does it 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. Further analysis of her eligibility under the remaining prongs outlined in Dhanasar 
would serve no meaningful purpose. 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 "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 l&N Dec. 516, 526 n.7 {BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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