dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
In Re: 28051481 Date: AUG. 24, 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 record did not 
establish that the Petitioner qualifies for a national interest waiver. 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 Christa 's, Inc. , 26 I&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 an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
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." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasa r, 
26 I&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: 
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 proposed endeavor has both substantial merit and national importance; 
• 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 concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record reflects that determination. The remaining issue to be determined on 
appeal 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. 
A. Substantial Merit and National Importance 
The Petitioner intends to apply her education and experience to healthcare management and patient 
care in the field of physical therapy. A professional plan describes her endeavor as follows: 
With the approval of my visa petition, I will significantly contribute to the field of 
Physical Therapy, providing first-class healthcare to American organizations and 
patients, and training other professionals in innovative treatment techniques. 
Consequently, my unique efforts will potentially impact the U.S. in the following ways: 
• Help fill the shortage of healthcare professionals in the U.S. 
• Improve the overall health of U.S. citizens 
• Improve quality of life rate for U.S. patients 
• Maximize efficiency and productivity of U.S. labor practices 
• Generate revenue 
• Create new job opportunities for U.S. workers 
• Train and expand the American workforce 
The Director determined that the Petitioner's endeavor to contribute to improvements in healthcare 
and contribute to the U.S. economy has substantial merit. The Director farther determined that the 
endeavor has national importance. The Director's decision summarizes the Petitioner's intentions to 
"impact the field by developing and offering integrated physiotherapy solutions in a range beyond the 
local community offering substantial economic benefits to the region where she operates or even to 
the nation entirely." The decision lists the evidence submitted that informed her determination: 
certificates of education and experience, support letters, a letter of intent, and"[ o ]ther material." 
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. 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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While we agree that the Petitioner's proposed endeavor has substantial merit, we do not agree with 
the Director's determination that the endeavor has national importance. Because we conclude below 
that the Petitioner did not establish her eligibility for a national interest waiver under the second prong 
of the Dhanasar framework, we need not folly address the Petitioner's eligibility under the first prong. 
However, we will discuss the issue to inform the Petitioner that this should be addressed in any future 
national interest waiver proceedings. 
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 farther 
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. Further, 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. 
The Petitioner's professional plan generally describes her intention to work with small- and medium­
sized enterprises in the U.S. to improve patient outcomes and healthcare costs and to positively impact 
the U.S. economy by creating jobs in a field for which there is a talent shortage. The Petitioner 
provides an overview of her ambition to administer patient care as a physical therapist and to improve 
healthcare management practices. The record includes several letters of interest from prospective 
employers to hire the Petitioner as a physical therapist. However, the documentation in the record 
does not provide insight as to how the Petitioner intends to impact the field or the economy more 
broadly as an individual working as either a physical therapist or as a manager in a healthcare setting. 
The letters of interest do not reference managerial duties, and the Petitioner's professional plan does 
not elaborate on how she intends to divide her time between these occupations. Letters of support in 
the record discuss her qualifications and experience as a physical therapist and as a member of 
healthcare management staff; however, beyond offering attestations as to the Petitioner's ability to 
successfully work in these professions, they do not identify a specific endeavor for which the Petitioner 
is qualified and well positioned to carry out. While the Petitioner's description of her endeavor is 
aspirational in the scope of its impact, she does not explain how her work will address a national talent 
shortage or affect the fields of physical therapy or healthcare management or otherwise have a positive 
impact on entities outside of that of her immediate employer or patients. The Petitioner cites her 
intention to share her skills with colleagues to contribute to the improvement of physical therapy 
techniques and the management of healthcare facilities. 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. Id. at 893. The Petitioner has not established the national 
importance of her proposed endeavor. We will withdraw the Director's finding on this issue. In any 
future national interest waiver proceedings, the Petitioner must establish that she qualifies under the 
first prong of the Dhanasar framework. 
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B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
The Director determined that the Petitioner did not establish that she is well positioned to advance her 
proposed endeavor. The Director's decision states that letters of support from experts and former 
colleagues describing the Petitioner's qualifications are not sufficient to demonstrate a record of 
success in the field of physical therapy. The Director farther states that the Petitioner has not provided 
evidence of her recognition in the field, evidence of interest from other parties in the field, or 
documentation of any progress in reaching the goals of her proposed endeavor. On appeal, the 
Petitioner submits a brief in which she reiterates her education and experience, stating the following 
through her attorney: 
[The Petitioner's] impressive career has [involved work] in a variety of roles and 
settings with a primary focus on Physical Therapy treatment, wellness interventions, 
and manual therapy, and she has a longstanding history of success within her field. The 
Petitioner has gained invaluable knowledge and expertise in Physical Therapy through 
her work as a clinician in various settings. 
The Petitioner's well-established history of success clearly shows exceptional ability 
and demonstrates that she is at the top of her field. Similarly [ the Petitioner's] wealth 
of experience working in various roles throughout her career will make her a valuable 
asset to any Physical Therapy setting looking to improve patient outcomes here in the 
United States. 
With the U.S. healthcare system under such strain, due in part to the aging population 
and the Covid-19 pandemic, there is no reason why a practitioner with experience as 
exceptional as [that of the Petitioner] would not be successful in achieving her goal of 
working as a Physical Therapist. She is, therefore, well-positioned to succeed in her 
endeavor. 
The Petitioner's appeal brief does not specifically address her aforementioned managerial experience. 
Upon review of the record, while we agree that the Petitioner appears to be an experienced physical 
therapist, she has not established that she is well positioned to advance a proposed endeavor of national 
importance. The record includes evidence of her education, certifications, and work experience, 
including letters from several sources that discuss her successful performance as a physical therapist. 
The Petitioner also asserts that "the enclosed support letters identify specific examples of how the 
Petitioner's work has impacted the healthcare and Physical Therapy sectors entirely." We note that, 
while these letters reference the Petitioner's "innovative methodologies" and "techniques" to restore, 
maintain, and promote some patients' "overall fitness and health," the authors do not identify specific 
tactics or processes that the Petitioner herself developed; although they provide evidence to 
demonstrate that the Petitioner was a valuable asset to her employers and colleagues, they do not 
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clarify how the Petitioner's qualifications as a physical therapist show that she is well positioned to 
advance an endeavor of national importance. The Petitioner's brief summarizes her endeavor as 
follows: 
[The Petitioner's] career plan in the United States is to continue working as a Physical 
Therap[ist], forming partnerships with institutions of great stature, and providing 
indispensable guidance about national advancements for individuals' health and 
economic development in the United States. 
As stated in discussion of the first prong of the Dhanasar framework, the Petitioner's description of 
her endeavor is generalized and does not specify how she plans to advance her endeavor. Throughout 
the record and on appeal, the Petitioner's description of her endeavor is vague and includes aspirations 
that far exceed the normal duties and responsibilities of an individual physical therapist and are not 
tied to any specific or plausible plan to achieve her proposed objectives. The Petitioner has not 
provided evidence of qualifications beyond those expected of an individual working in a physical 
therapy occupation. As the Petitioner has not established that she has developed an endeavor that rises 
to a level commensurate with that of national importance, we cannot make a determination as to 
whether the Petitioner is well positioned to potentially achieve an endeavor. The Petitioner has not 
established that she is well positioned to achieve a proposed endeavor. 
The record does not establish the Petitioner is well positioned to advance the proposed endeavor as 
required by the second prong of the Dhanasar precedent decision. Therefore, the Petitioner has not 
demonstrated eligibility for a national interest waiver. 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 agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision); 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 met the requisite second prong of the Dhanasar analytical framework. We 
conclude that the Petitioner has not established that she is eligible for or otherwise merits a national 
interest waiver. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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