dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 29, 2024 In Re: 29583410 
Appeal of Nebraska 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 or of exceptional ability, 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 employment based second preference (EB-2) 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. See 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 Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish 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 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 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 immigrant 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business." To demonstrate 
exceptional ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form of letter(s) from current or former employer( s) showing that 
the alien has at least ten years of foll-time experience in the occupation for which he or 
she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
And 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. Whilst neither the statute nor the pertinent regulations define the term "national interest," we 
set forth a three-prong analytical framework for adjudicating national interest waiver petitions in 
Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that USCIS may as a matter of 
discretion grant a national interest waiver of the job offer, and thus of the labor certification, to a 
petitioner classified in the EB-2 category if they demonstrate that (1) the noncitizen's proposed 
endeavor has both substantial merit and national importance, (2) 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen is well positioned to advance the proposed endeavor, we consider factors including 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
2 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. The Petitioner Is Not An Individual of Exceptional Ability 1 
We disagree with the Director's conclusion that the Petitioner qualifies for EB-2 permanent immigrant 
classification as an individual of exceptional ability and hereby withdraw it. Although the evidence 
in the record reflects the Petitioner has provided an official academic record showing they have a 
degree from a university in Costa Rica, the remaining evidence in the record does not sufficiently 
demonstrate the Petitioner's eligibility for EB-2 nonimmigrant classification as an individual of 
exceptional ability. 2 
Evidence in the form of letter(s)from current or former employer(s) showing that the 
noncitizen has at least ten years offull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). 
The letters purporting to support the Petitioner's work experience in the specialty do not adequately 
reflect at least 10 years of foll-time experience. The Petitioner submitted letters from the le al 
re resentative of the le al representative of 
and legal representative of.__ ______________ ____. 
.__________ __. The authors of the letters attested that they represented the employers the 
Petitioner provided their services to for an aggregate period of 10 years. 
The regulation requires the Petitioner earn 10 years of foll-time work experience. The letters the 
Petitioner submitted do not specify whether the Petitioner's employment with the companies they 
worked for was foll-time. This omission looms even larger when the evidence in the record reflects 
that there was substantial overlap in the Petitioner's period of employment with I I I Ias reflected in the respective letters the Petitioner 
submitted into the record. So we cannot conclude that the Petitioner has the requisite 10 years of foll-
1 On appeal, the Petitioner asserts they have "never referenced or submitted evidence to establish that the Petitioner held 
an advanced degree." (emphasis in original). So we will not evaluate the Petitioner's eligibility for EB-2 classification as 
an advanced degree professional. 
2 The Petitioner's nursing license did not serve as sufficient evidence of a license to practice as a physical therapist under 
8 C.F.R. § 204.5(k)(3)(ii)(C). And the Petitioner did not submit evidence that they have commanded a salary. or other 
remuneration for services, which demonstrates exceptional ability under 8 C.F.R. § 204.5(k)(3(ii)(D). 
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time experience in their occupation because the letters do not contain sufficient detail to establish that 
the Petitioner worked in full-time employment. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner submitted evidence of their membership in thd 
the ._______________ ____. (Nurses Assoc~ia-t-io_n_)_,_a_n_d-th_e....,l-----------1 
(Therapists Association). But membership in these associations is not sufficient to demonstrate the 
Petitioner's membership in professional associations as required by the regulation. 
The Petitioner's membership in is not sufficient evidence of 
membership in a professional association. Membership in th_,_ ____ ~-------------' 
is open not only to physical therapists, but also physical therapist assistants and students of physical 
therapy. Consequently, it appears the I I is not a professional 
association limited to the physical therapist profession. 
And the Petitioner's membership in the~-------------~ (Nurses Association) is 
also not sufficient evidence to reflect the Petitioner's membership in professional associations. A 
profession as defined at section 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), includes but is not 
limited to architects, engineers, lawyers, physicians, surgeons, teachers in elementary or secondary 
schools, colleges, academies, or seminaries. The U.S. Department of Labor maintains a non­
dispositive list of professional occupations that customarily requires a bachelor's or higher degree. See 
Update to Appendix A to the Preamble-Education and Training Categories by O*NET-SOC 
Occupations; Labor Certification for Permanent Employment of Immigrants in the United States and 
Procedures To Establish Job Zone Values When O*NET Job Zone Data Are Unavailable, 86 Fed. 
Reg. 63070 (Nov. 15, 2021). The occupation of nurse is not included in the statutory list, nor does it 
appear as an occupation that customarily requires a bachelor's or higher degree. Additionally, the 
DOL's Occupational Outlook Handbook (Handbook) reflects that "nurses usually take one of three 
education paths: a bachelor's degree in nursing, an associate's degree in nursing, or a diploma from 
an approved nursing program." See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational 
Outlook Handbook, Registered Nurses (Nov. 27, 2023), https://www.bls.gov/ooh/registered­
nurses.htm. So a nurse is not a member of the professions per the statute. because nursing does not 
customarily require a bachelor's degree as a minimum requirement for entry into the occupation. 
Consequently, it appears the.________________ ___.(Nurses Association) is not a 
professional association limited to the physical therapist profession. 
And the Petitioner's membership in the.
_________ _.(Therapists Association) is insufficient 
evidence of their membership in a professional association. The minimum requirement for 
membership in the Therapists Association is "a university degree duly accredited by the national 
authorities." But membership is open not only to physical therapists, but also to other occupations 
which do not customarily require a bachelor's degree as a minimum requirement for entry to the 
occupation such as respiratory therapists. See Bureau of Labor Statistics, U.S. Dep't of Labor, 
Occupational Outlook Handbook, Respiratory Therapists (Sept. 06, 2023), 
https://www.bls.gov/ooh/respiratory-therapists.htm. Consequently, it appears the I I 
I I(Therapists Association) is not a professional association limited to the physical therapist 
profession. 
4 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
The Petitioner submitted several letters of recommendation to demonstrate that they have been 
recognized for achievements and significant contributions to their field by peers, governmental entities 
or professional or business organizations. But the evidence the Petitioner submitted did not meet the 
standard of proof because it did not satisfy the basic standards of the regulations. See Matter of 
Chawathe, 25 I&N Dec. at 3 7 4 n. 7. The regulation requires evidence of recognition of achievements 
and significant contributions. When read together with the regulatory definition of exceptional ability, 
the evidence of recognition of achievement of significant contributions should show expertise 
significantly above that ordinarily encountered in the field. 
The Petitioner's letters ofrecommendation are written by "previous employers, colleagues, educators, 
and previous patients." The Petitioner asks us to conclude the writers' conclusions alone constitute 
recognition of achievements and significant contributions. But these statements are not supported by 
any evidence in the record which reflects that these letters represent noteworthy achievements and 
significant contributions. The letters described the Petitioner's character, work ethic, and other 
positive qualities like their "compassion" and "devotion." In general, the letter writers indicated the 
Petitioner was a person of genial character and a conscientious worker. But the Petitioner's genial 
character and good work ethic are not achievements or significant contributions to their field of 
endeavor. 
Aside from these effusive descriptions of the Petitioner's character, the letters mention the Petitioner's 
work with elderly patients and their dual qualification as a physical therapist and nurse. But it is not 
evident in the record how performing the duties of a physical therapist for elderly individuals is an 
achievement and significant contribution to their field significantly above that ordinarily encountered 
in the field. One of the letters submitted by the Petitioner mentioned their work with palliative patients 
improving the patients' lives as they reached end of life. Whilst laudable, it is not evident that 
performing expected duties of a physical therapist to a sub-set of vulnerable patients is an achievement 
or significant contribution to the field of physical therapy significantly above that ordinarily 
encountered in the field. Or in another words, the record does not adequately describe how treating 
palliative patients with physical therapy requires expertise significantly above that ordinarily 
encountered in the field such that it amounts to an achievement and significant contribution to physical 
therapy as a discipline. 
In sum, the evidence does not adequately identify any achievements or significant contributions 
significantly above that ordinarily encountered in the Petitioner's field that would be worthy of 
recognition. So we cannot conclude that the Petitioner meets this ground of eligibility. 
The Petitioner has established eligibility in one of the six criteria contained at 8 C.F.R. § 204.5(k)(3)(ii). 
They cannot fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(k)(3)(ii). 
So we need not provide a final merits determination to evaluate whether the Petitioner has achieved the 
required level of expertise required for exceptional ability classification. Consequently, we conclude 
5 
the Petitioner has not demonstrated their eligibility for permanent immigrant classification in the EB-
2 category. 
B. Eligibility for Discretionary Waiver of the Job Offer, And So a Labor Certification, in the National 
Interest. 
We now tum to the Petitioner's appeal of the Director's decision concluding the record did not 
establish 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 their proposed endeavor is substantially 
meritorious and nationally important, that they are well-positioned to advance their proposed 
endeavor, and that on balance of applicable factors it would be beneficial to the United States to waive 
the requirements of a job offer and thus of a labor certification so that they can undertake their 
proposed endeavor. But the evidence the Petitioner has submitted into the record is not relevant, 
material, or probative to support their assertion of eligibility for a national interest waiver under the 
Dhanasar analytical framework. So we conclude that a favorable exercise of discretion to waive the 
job offer requirement, and thus a labor certification, is not warranted. 
1. The Proposed Endeavor 
The Petitioner indicated "physical therapist" as the proposed job title on their Form I-140, Immigrant 
Petition for Alien Worker. They intended to "utilize [their] expertise, skill and passion as a physical 
therapist and nurse to benefit the lives of others via employment at Illinois Spine, a chiropractic clinic. 3 
They elaborated that their endeavor would involve performing a role as a physical therapist with 
knowledge and experience they gained as a nurse and physical therapist in their home country. The 
Petitioner noted that they would work with the elderly as well as people from underrepresented and 
lower socioeconomic backgrounds. The Petitioner contended that their proposed endeavor would also 
address a shortage of physical therapists. 
2. Substantial Merit and National Importance 
a) Substantial Merit 
We withdraw the Director's conclusion that the Petitioner proposed endeavor did not have substantial 
merit. An endeavor's merit may be demonstrated in a range of areas such as business, 
entrepreneurialism, science, technology, culture, health, or education. Dhanasar at 889. The 
Petitioner described their endeavor as a "physical therapist." The record before us contains evidence 
of the characterization of the Petitioner's proposed endeavor as a "physical therapist" which falls 
within the range of areas we concluded could demonstrate endeavor of substantial merit. So the record 
supports the substantial merit of the Petitioner's proposed endeavor. 
3 Although we conclude, like the Director, that the Petitioner has not demonstrated eligibility for a discretionary waiver of 
the job offer requirement, and thus of a labor certification, in the national interest we do not agree with the Director's 
rationale concluding that "[e]mployment as a physical therapist is not an endeavor." The Director is conect in so far that 
a petitioner proposing an endeavor that simply continued their ongoing employment on a permanent indefinite basis, and 
without a thorough description, would likely face significant obstacles in demonstrating their proposed endeavor's 
substantial merit and national imp011ance. But that does not preclude adequately described and substantiated proposed 
endeavors unde11aken as pa11 of a petitioner's employment from evaluation of eligibility for a discretionary waiver of the 
requirement of a job offer, and thus a labor certification, in the national interest under the Dhanasar analytical framework. 
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b) National Importance 
Alongside demonstrating its substantial merit, a petitioner must also showcase the national importance 
of their proposed endeavor. The Director concluded that the Petitioner's proposed endeavor did not 
have the required national importance to meet the first prong of the Dhanasar framework. We agree. 
In support of their claim of eligibility for a discretionary waiver of the job offer requirement, and thus 
of a labor certification, under Dhanasar the Petitioner submitted copies of their educational 
documents, letters of recommendation, personal statement, and articles describing the importance of 
the health workers, physical therapists, and an aging population. 4 
The Petitioner essentially argues their endeavor is nationally important because they, based on their 
previous experience and achievements, will undertake and execute it. The Petitioner described their 
endeavor in terms of performing the duties of a physical therapist competently. The main basis of the 
Petitioner's claim of eligibility for the act of discretion to waive the requirement of a job offer, and 
thus a labor certification, in the national interest comes from the Petitioner's claims regarding their 
past career as a physical therapist in their home country, their dedication to their field, and the 
competent and successful way they have accomplished their duties in the past. But the performance 
of duties of a physical therapist on a broad level, even successfully or competently, do not implicate 
matters rising to a level of national importance. These facts are not relevant to the question of whether 
a proposed endeavor can exert potential positive impact rising to a level of national importance. When 
evaluating the national importance of a proposed endeavor, the relevant question is not the 
performance of the proposed endeavor which the individual will operate; instead, we focus on "the 
specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. So we are not concerned with the individual petitioner when evaluating the first prong of the 
Dhanasar analytical framework. We are focused on a petitioner's proposed endeavor. And to 
demonstrate the national importance of a proposed endeavor under Dhanasar 's first prong, we look to 
its potential prospective impact. In Dhanasar we said that "we look for broader implications." See 
Dhanasar, 26 I&N Dec. at 889. Broader implications are not necessarily evaluated from a narrow 
frame of reference such as geography; implications within a field which demonstrate a national or 
even international influence of broader scale can rise to a level of national importance. And substantial 
positive economic impacts, such as a significant potential to employ U.S. workers particularly in an 
economically depressed area, can also help a proposed endeavor rise to a level of national importance. 
The success of the endeavor, or attributes that could tend to make the endeavor more successful, are 
consequently not as important as determining whether the proposed endeavor itself stripped away from 
a petitioner has attributes that would highlight the prospective positive impact of its broader 
implications or positive economic effects rising to a level of national importance. And it is here that 
the Petitioner's endeavor, such that it is, is deficient. The Petitioner's endeavor is at its core the 
performance of their job duties in the operation of a business,! I But the record does not 
adequately support how the performance of these duties by the Petitioner would potentially 
prospectively impact the Petitioner's field in a manner that rose to the level of national importance, 
either through the proposed endeavor's broader implications or its positive economic impact. They 
do not identify what specific broader considerations would emanate from their specific performance 
of physical therapist duties that would implicate matters in the field at a level rising to national 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
7 
importance. For example, the Petitioner does not sufficiently link in the record how their performance 
of physical therapist duties at Illinois Spine would increase employment in an area with historic 
unemployment. 
And it is also unclear from the evidence in the record that a single instance of performing the job duties 
of physical therapist described by the Petitioner would have a significant impact on the field beyond 
its immediate sphere of influence, which is the business they would work for. The evidence in the 
record does not highlight how the prospective potential impact of the work of one physical therapist 
at I I could have broader implications implicating issues rising to a level of national 
importance. Again the Petitioner tries to highlight their endeavor's broader implications by linking 
the endeavor to their experience performing general duties as a physical therapist in their home country 
with nursing facets to elderly individuals. And again simple past performance of the duties of the 
endeavor, even successfully or competently, does not confer broad benefits rising to a level of national 
importance because it is not clear from the record how they ascend to a level of national importance. 5 
What can be concluded from the record is that the performance of duties of physical therapist would 
benefit only the company employing the Petitioner and utilizing their services,! I This is 
akin to how the benefit of someone's teaching is generally only directly beneficial to the students 
being taught and not wider population. In Dhanasar we discussed how teaching would not impact the 
field of education broadly in a manner which rises to national importance. Dhanasar at 893. By 
extension, activities which only benefit a single employer would not rise to a level of national 
importance. The record does not contain any meaningful analysis of the broader implications or 
potential prospective economic impact rising to the level of national importance stemming from the 
Petitioner's specific performance of the duties of a physical therapist. And the letters of 
recommendation containing testimonials of the services the Petitioner performed do not describe how 
their performance of those duties connect to broader implications rising to national importance or any 
nationally important economic impact. In sum the record supports the conclusion that the potential 
impact of the Petitioner's endeavor would benefit only companies that employ the Petitioner. 
Moreover, the record does not contain adequate evidence to identify any positive economic impact 
rising to a level of national importance from the Petitioner's endeavor. In Dhanasar, we suggested 
that a Petitioner may be able to demonstrate the national importance of an endeavor by demonstrating 
"significant potential to employ U.S. workers .. .in an economically depressed area ... " See Dhanasar 
at 890. Here, the evidence in the record does not identify any hiring plans or any locality or 
economically depressed area that could benefit from the Petitioner's proposed endeavor. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition 
of burden of proof from Black's Law Dictionmy (11th ed. 2019) (reflecting the burden of proof 
includes both the burden of production and the burden of persuasion). The Petitioner has not met their 
burden of proof with persuasive material, relevant, and probative evidence which by a preponderance 
demonstrates the national importance of their proposed endeavor. 
5 It is important to note that the Petitioner's accomplishments and expertise are more relevant to the second prong of 
Dhanasar, which "shifts the focus from the proposed endeavor to the foreign national." Dhanasar at 889. 
8 
III. CONCLUSION 
The Petitioner has not demonstrated their categorical eligibility for EB-2 permanent immigrant 
classification. And the record contains insufficient evidence to establish they met the first prong of 
the Dhanasar analytical framework. Moreover, because the Petitioner has not established that the 
proposed endeavor has national importance, as required by the first Dhanasar prong, they are 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). 
We conclude the Petitioner has not established that they are eligible for or otherwise merit a national 
interest waiver as a matter of discretion. So the petition will remain denied and the appeal is hereby 
dismissed. 
ORDER: The appeal is dismissed. 
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