dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re : 10090207 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 25, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree, 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that she had not 
established that a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits additional documentation and a brief asserting that she is eligible 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 ; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 
2010) . 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 . 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 ofjob 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. 
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 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 importance, 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, 
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 certification. In performing 
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 offer or for the petitioner to obtain a labor certification; whether, even assuming 
1 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) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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 warrant 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 
The Director found that the Petitioner qualifies as a member of the professions holding 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 Petitioner indicated that she intends to start a physical therapy business which "will perform all types 
of prescribed physical therapy at our clinic or in a patient's home" and "also offer fall prevention therapy 
to people over 55 that struggle with balance" in Florida. Although the Petitioner 's statements reflect 
her intention to provide valuable physical therapy services for her future clients, for the reasons 
discussed below , we agree with the Director that the Petitioner has not sufficiently demonstrated the 
national importance of her proposed endeavor under the first prong of the Dhanasar analytical 
framework. 4 
On appeal, the Petitioner claims that her proposed endeavor is of national importance and "stands to 
produce benefits beyond the company's prospective patients, employees, and group class participants" 
generally because of "the importance of healthcare and physical therapy, coupled with the shortage of 
professional[s] in that field[,] as well as an excess expenditure of people with physical therapy problems." 
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. 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. 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. It is important to note that 
the shortage of physical therapists in the United States does not render her proposed endeavor nationally 
important under the Dhanasar framework. In fact, such shortages of qualified workers are directly 
addressed by the U.S. Department of Labor through the labor certification process. 
The Petitioner presented a business plan, including such information as a description of the proposed 
company and its services, a market analysis, the projected profit and loss, and its marketing and sales 
strategies. Regarding future staffing, the Petitioner's business plan anticipates that it will have "14 
employees in our first year," including physical therapists , physical therapy aides and office personnel, 
and "will grow to 19 employees by Year 5."5 In addition, the plan projects $789,000 to be paid in 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
5 The Petitioner also provides infonnation regarding regional input-output multipliers (RIMS) and states that, "[b ]ased on 
the calculators , [her] endeavor will create 13.5 jobs in the first year of operation[,] growing to 34 jobs in the fifth year." 
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Federal, State, and payroll taxes in the next five years . The Petitioner also references the high cost of 
"treating fall injuries," but acknowledges that she "cannot quantify exactly how much the government 
will save because of [her] endeavor." 
In this matter, the Petitioner has not demonstrated that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation as contemplated by Dhanasar . While we may agree with the Petitioner's 
statements that "' significant potential to employ U.S . workers' is not the same as a 'potential to employ 
a significant number of U.S. workers,"' and that "[e]vidence that the endeavor has the potential to 
create a significant economic impact may be favorable but is not required, as an endeavor 's merit may 
be established without immediate or quantifiable economic impact," it is important to acknowledge 
that Dhanasar provided examples such as "endeavors related to research, pure science, and the 
furtherance of human knowledge " which "may qualify, whether or not the potential accomplishments 
in those fields are likely to translate into economic benefits for the United States ." The Petitioner has 
not demonstrated that her proposed physical therapy company is similar to any of the listed endeavors, 
such that she would meet the national importance portion of the first prong. 
The Petitioner also has not shown that her company's projected future staffing levels stand to provide 
substantial economic benefits to Florida or the United States. Although the Petitioner asserts that her 
company will hire U.S. employees, she has not established that the area where 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 or business activity . Further , while she indicates that the company has growth 
potential, the Petitioner has not demonstrated that benefits to the regional or national economy resulting 
from the Petitioner's undertaking would reach the level of "substantial positive economic effects." Id. at 
890. For example, the Petitioner has not demonstrated that the projected taxes to be paid in the next 
five years will substantially affect either Florida's or the United States' tax revenue. or the U.S. or 
Florida economy more broadly at a level commensurate with national importance . For all of these 
reasons, the record does not establish that, beyond the benefits provided to its clients and employees, 
the Petitioner's proposed endeavor stands to have broader implications rising to the level of having 
national importance or that it would offer substantial positive economic effects . 
Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the 
appellate arguments regarding the remaining issue . 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 ofL-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 
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 as a matter 
of discretion. 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. 
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