dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re : 17960545 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 23, 2021 
Form I-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 and as an individual of exceptional ability, 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 Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established his eligibility as a member of the professions holding an advanced degree, as an individual 
of exceptional ability, and that a waiver of the required job offer, and thus of the labor certification, 
would be in the national interest. 
On appeal, the Petitioner asserts that he is eligible as a member of the professions holding an advanced 
degree and 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 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
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. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interes~" 
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 impmiance, 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, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USCJS, No. 1 7-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USC IS' decision to grant or 
deny a nationalinterestwaiverto be discretionaiy in nature). 
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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 ce1iification. In perf01ming 
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 off er or for the petitioner too btain 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 
sufficiently urgent to wan-ant 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 
In order to show that a petitioner holds a qualifying advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, a petitionermaypresent"[a]n 
official academic record showing that the alien has a United States baccalaureate degree or a foreign 
equivalent degree, and evidence in the form ofletters from cunent or former employer(s) showing that 
the alien has at least five years of progressive post-baccalaureate experience in the specialty." 8 C.F.R 
§ 204.5(k)(3)(i)(B). 
The Director determined that the Petitioner received the foreign equivalent of a United States 
baccalaureate degree. However, the Director concluded that the Petitioner did not demonstrate at least 
five years of post-baccalaureate experience. On appeal, the Petitioner does not contest the Director's 
determination relating to his degree but argues that he has at least five years of experience. 
At initial filing, the Petitioner provided the following three employer letters: 
• I I-Physical Therapist-July 1, 2016to Present (letter dated December 19, 2018)-
30 hours per week 
• I ~ - Physical Therapist- February 1, 2011 to February 28, 2013 - 10 sessions per 
week 
• I I- Physical Therapist Aid and Assistant- March 5, 2007 to January 31, 2011 - 30 hours per 
week 
The Petitioner also submitted the following four letters from individuals who received physical therapy 
treatment: 
• - January 2011 to March 2015- "2 to 3 sessions a week" ~--------~ 
3 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
3 
• ~--------------~- July 2011 to February 2019 - "[t]he frequency of 
treatment started as 3 times a week but during 2016 and 2017 it was 5 times a week" and "[s]ince 
the beginning of 2018 we returned to the session to 3 times a week" 
• I I-March 2013- February 2019- "2 sessions a week" 
• .__ _________ ____. March 2013 - February 2019- "one session a week" 
The Director stated in the request for evidence (RFE): 
According to the evidence you submitted, you have not had five years of full-time 
progressive, post-baccalaureate experience in your specialty. You received your degree 
on June 26, 2012. Since June 26, 2012,youhaveworkedpart-timein two different clinics. 
You have also provided some in-home physical therapy sessions to a variety of clients as 
a self-employed individual. The letter froml I establishes you had 
approximately 2 years and 1 72 days of part-time employment. The letter froml I 
I !establishes you had approximately two years and 29 days 
of part-time employment. Even if these two positions were full-time positions, they do 
not establish you have the required five years of progressive experience as a physical 
therapist. However, they are not full-time positions, so the calculated time would be even 
less. 
The letter from !discusses your work experience prior to your degree confeml and 
in the role of an aide/assistant. It cannot be used to calculate your progressive, post­
baccaulareate experience. The various letters from individuals establish that you have 
provided vaiious levels of in-home care to patients as a self-employed physical therapist 
during the years betweenJanuaiy 2011 andFebrua1y 2019. However, the evidence you 
submitted does not establish that you worked full-time in a progressive manner during 
your self-employment. Thus, it does not appear that you can qualify for the classification 
as a member of the professions holding an advanced degree. 
In response, the Petitioner submitted a revised letter froml I claiming that the Petitioner 
worked as "a Full-time Physical Therapist" "with an average of 40 hours a week." In denying the petition, 
the Director concluded: 
The Petitioner received his degree on June 26, 2012. Subsequent to June 26, 2012, he 
worked in two different clinics prior to the filing date of this petition. He also provided 
some in-home physical therapy sessions to a variety of clients as a self-employed 
individual. The two letters froml I indicate he 
worked from February 1, 2011 to February 28, 2013. The letter submitted in response to 
the RFE letter clarifies that this work was considered full-time employment. However, 
he didn'tgraduateuntilJune 26, 2012. Thus, theamontoftime he gained experience with 
this employer after he graduated equates to approximately 8 months of full-time, 
progressive, post-baccalaureate experience (June 26, 2012 through February 28, 2013). 
The letter froml I establishes he had approximately 2 years and 1 72 days of 
part-time employment (at 30 hours/week) or the equivalent of 1 year and 10 months of 
full-time experience. Thus, his work with these two clinics equates to approximately 2 
years and 6 months of full-time, progressive, post-baccalaureate experience. 
4 
The four letters from individuals attesting to his work as a self-employed physical 
therapist during the years between January 2011 and February 2019 establish that the 
petitioner provided various levels of in-home care to patients. However, the letters the 
petitioner submitted do not establish that he worked full-time in a progressive manner 
during the entire period of his self-employment. In fact, during a portion of the time frame 
in which he indicated he was self-employed (March 2013 to January 2019), he was 
working part-time forl l(July 2016 to January 2019). The four letters from 
his patients do not establish he had full-time experience as a self-employed physical 
therapist and the petitioner did not submit any other evidence of his self-employment 
On appeal, the Petitioner argues: 
We would like to point that for 5 years and 10 months, [the Petitioner] wotked 
concurrently atl I, which was a part-time job and as a home 
care physical therapist in the remaining hours. This means that during all these years, [the 
Petitioner] worked both as a paii-time employee forl I as 
well as providing home care during the other part of the day. In total, when adding the 
time [the Petitioner] worked part-time for! land providing 
home care for private patients, from March 2013 to January 2019, he demonstrates a total 
of 5 years, 10 months of full-time experience working as a physical therapist. 
The record, however, does not support the Petitioner's claim that he "worked concurrently" at ..... 1 -~ 
I I and as a home care physical therapist for 5 years and IO months. As indicated 
above, the letter froni._ ____ _.b states that the Petitioner worked from July 1, 2016 to Present (letter 
dated December 19, 2018), a period of approximately 3 years and 5 months, not 5 years and 10 months. 
Furthermore, the letters from the private individuals do not provide sufficient information to determine 
the number of hours he worked. While the letters indicate the number of weekly sessions, they do not 
specify the length of those sessions to determine how much he worked on a part-time basis. 
The Petitioner further contends: 
When adding the time worked previously at~-------------~~ 
I O l from the date of his graduation in May 2012 to February 2013, we can add 
another 8 months of progressive full-time experience working as a physical therapist, for 
a grand amount of 5 years and 9 months of progressive full-time experience working as a 
physical therapist post his graduation. 
As discussed above, the Petitioner claims to have 5 years and 10 months of combined I Vself­
employment and then adds 8 months ofl !employment, for a "grand amount of 5 years and 9 
months." The Petitioner has not sufficiently explained how he goes from 5 years and 10 months, adds 8 
months, and comes up with 5 years and 9 months~ one month less from hisl I/self-employment 
employment claim. 
5 
Furthermore, the Petitioner has not established how working full-time to working part-time jobs 
demonstrates progressive post-baccalaureate experience in the specialty consistent with the regulation 
at 8 C.F.R. § 204.5(k)(3)(i)(B). The Petitioner has not shown that he has advanced, through 
employment, in his physical therapy profession. 
Without fmiher information and evidence from his employers, the Petitioner has not established that he 
has at least five years of progressive post-baccalaureate experience in physical therapy to constitute 
the equivalent to an advanced degree in that specialty. See 8 C.F.R. § 204.5(k)(2) and 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 4 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree. In addition, we need not reach a decision 
whether, as a matter of discretion, he is eligible for or otherwise merits a national interest waiver under 
the Dhanasar analytical framework. Accordingly, we reserve this issue. 5 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. 
4 The Petitioner does not address the Director's determination regarding his eligibility as an individual of exceptional 
ability,nordoes he argue his eligibility for such classification on appeal. Accordingly, we deem this previous claim to be 
waived. See Rizk v. Holder, 629 F.3d I 083, I 091 n.3 (9th Cir.2011) (finding that issues not raised in a briefare deemed 
waived). 
5 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-A-C-, 26 I&N Dec. 516, n.7 
( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
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