dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 25690610 Date: MAY 04, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist, seeks employment-based second preference (EB-2) immigrant 
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 did not 
establish that her proposed endeavor has national importance, that she is well positioned to advance 
the proposed endeavor, or that it would be beneficial to the United States to waive the requirements 
of a job offer and, thus, of a labor certification . 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS ' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 2 
II. ANALYSIS 
The Director determined that the Petitioner qualifies as a member of the professions with 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. 
The Director determined that the Petitioner did not meet any of the three prongs of the Dhanasar 
framework. On appeal, the Petitioner alleges that, rather than applying the governing standard of 
review, preponderance of the evidence, 3 the Director "imposed novel substantive and evidentiary 
requirements beyond those set forth in regulations." Although the Petitioner asserts that she has 
provided evidence sufficient to demonstrate her eligibility for a national interest waiver, she does not 
further explain or identify any specific instance in which the Director denied her petition applying a 
standard of proof other than that of preponderance of the evidence. The Petitioner also alleges that 
the Director "[issued] a denial without warranting the Appellant the opportunity to present additional 
evidence and cure any questions raised by the adjudicating Officer. ... " The record shows that the 
Petitioner did, in fact, receive and respond to a request for evidence (RFE); an RFE was issued on 
April 26, 2022, and the Petitioner's response-which includes a date-stamped copy of the RFE-was 
received on September 19, 2022. 
For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of her endeavor in order to establish her eligibility under the 
first prong of the Dhanasar analytical framework. The first prong, substantial merit and national 
importance, focuses on the specific endeavor that the individual 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. Dhanasar, 26 I&N Dec. at 889. 
The Petitioner initially submitted the following statement: 
My career plan in the United States is to work with a health care facility to provide 
expert advice and treatment to patients, in addition to possibly working to teach new 
Physical Therapists. My experience will allow for even more highly skilled physical 
therapists to enter the healthcare field in the U.S., which will curb the shortage, increase 
revenue, benefit the economy, and enhance overall patient health. 
Regarding the first prong, the Director found that the proposed endeavor had substantial merit; however, 
the Director issued an RFE requesting additional evidence to establish the national importance of the 
proposed endeavor. In response, the Petitioner referred to herself as an entrepreneur and submitted a 
business plan for a company that she wishes to operate with two additional partners providing services 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 See INS v. Cardoza-Foncesca, 480 U.S. 421,431 (1987) (discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
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related to orthopedic physical therapy rehabilitation, respiratory therapy, neurological rehabilitation 
therapy, as well as hosting Pilates sessions. The business plan refers to the Petitioner's role at the 
company as a "business administrator," a "business manager," and "CEO." The business plan states the 
following ( quoted as written): 
[The Petitioner's company] is set to impact the Physical Therapy Rehabilitation Services 
industry with a Total Payment of Wages of 7.63 million dollars in a total of (5) years of 
operation, in the State of Florida, generating ( 65) direct jobs for U.S. workers, helping the 
U.S. citizens improve their daily qualify oflife and safety. The Business Plan projects 13 
million dollars in revenue for the first ( 5) five years. 
The Petitioner's initial description of her proposed endeavor did not indicate plans to form a company; 
the Petitioner initially intended to "work with a health care facility" and to provide instruction to new 
physical therapists. We conclude that the RFE response presented a new set of facts regarding the 
proposed endeavor, which is material to eligibility for a national interest waiver. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which requires that beneficiaries seeking 
employment-based immigrant classification must possess the necessary qualifications as of the filing 
date of the visa petition. See also Dhanasar, 26 I&N Dec. at 889-90. The Petitioner must meet 
eligibility requirements at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). The Petitioner's 
plans to establish and manage a company were presented after the filing date; as such, the amended 
endeavor cannot retroactively establish eligibility. A petitioner may not make material changes to a 
petition that has already been filed to make an apparently deficient petition conform to USCIS 
requirements. See Matter ofIzwnmi, 22 I&N Dec. 169, 175 (Comm'r 1998). 
In response to the Director's request for evidence to demonstrate how her services would rise to the 
level of national importance, the Petitioner has significantly changed her proposed endeavor. Notably, 
the Petitioner does not explain how she would allocate her time between performing physical therapy 
services initially described as part of her stated endeavor, if any, and serving in a managerial role at 
her company. Accordingly, we conclude that both the focus of her endeavor as well as her field of 
endeavor have materially changed. If significant material changes are made to the initial request for 
approval, a petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 8 C.F.R. § 103.2(b)(l). For these reasons, the petition may not 
be approved. 
In addition, even if the Petitioner had presented her plans to establish and operate her business at the 
time of filing, which she did not, we agree with the Director that the Petitioner has not sufficiently 
demonstrated the national importance of this endeavor under the first prong of the Dhanasar analytical 
framework. For example, the Petitioner's business plan projects sales that would purportedly allow for 
the business to grow from a single location in IFlorida, to several locations within the state; there 
is no indication, however, of the manner in which those sales forecasts were calculated. In denying the 
petition, the Director concluded that the Petitioner had not demonstrated the national importance of her 
proposed endeavor, as the Petitioner's evidence did not show that her proposed work through the 
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operation and management of her company would have broader implications at a level indicative of 
national importance. 
On appeal, the Petitioner submits a brief in which she insists that the Director's decision was in error and 
that the evidence of record establishes her eligibility for a national interest waiver. She reiterates that a 
part of the national importance ofher endeavor lies in the fact that there is a shortage of physical therapists 
in the United States. However, the Petitioner does not explain 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 ofDhanasar, 26 I&N at 893. The 
impact of the Petitioner's work, both as a therapist and as a teacher, appears to be similarly limited in 
scope. 
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. at 890. We also stated that "[aa ]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. 
A shortage of physical therapists in the United States does not render the proposed endeavor nationally 
important under the Dhanasar framework. 
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 provide physical therapy services for her company's 
clients, 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 petitioner's teaching activities did not rise to the level of having national importance because 
they would not impact his field more broadly. See Dhanasar, 26 I&N Dec. at 893. Here, we conclude 
that the record does not show that the Petitioner's proposed endeavor stands to sufficiently extend 
beyond her clientele to impact either the physical therapy industry more broadly at a level 
commensurate with national importance. 
In addition, the Petitioner has not demonstrated that her proposed endeavor has significant potential 
to employ U.S. workers or otherwise offers substantial positive economic effects for the nation. 
Specifically, she has not shown that her company's business activity stands to provide substantial 
economic benefits to Florida or to the United States. The business plan does not demonstrate that the 
benefits to the regional or national economy resulting from the Petitioner's endeavor 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 provided 
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evidence to establish that the area in which the company will operate 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, business 
activity, or tax revenue. While the business plan shows that the Petitioner's company will hire sixty­
five full- and part-time employees within five years, the plan does not sufficiently detail the basis for 
the revenue and staffing projections depicted, nor does it adequately explain how the revenue and 
staffing projections will be realized. The Petitioner's unsupported statements are insufficient to meet 
her burden of proof. A petitioner must support assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. at 376. While the Petitioner claims that her 
"proposed endeavor is national in scope, and will produce significant national benefits, due to the 
ripple effects of her professional activities," she has not shown that the prospective impact of the 
services offered by her company represents a significant share of the physical therapy market. The 
Petitioner has not demonstrated the national importance of her proposed endeavor under the first prong 
of the Dhanasar analytical framework. 
The record does not 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. Because the identified basis for dismissal is 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); 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 
The Petitioner has not demonstrated that her proposed endeavor has national importance. As the 
Petitioner has not met the requisite first prong of the Dhanasar analytical framework, she has not 
established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
The petition will remain denied. 
ORDER: The appeal is dismissed. 
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