dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
InRe: 11198751 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 25, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physical therapist entrepreneur, 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 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. 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 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 
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 
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). 
2 
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 determined 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 "will engage in the business of preventative and rehabilitation services 
for companies and individuals" and her "startup organization.I I will 
provide ergonomic consulting services, including in person assessments, online training and group classes 
headquartered in I I NJ," servicing a 100-mile radius. Although the record reflects substantial 
merit, 4 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. 
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" 
because of"the importance of healthcare and physical therapy, the shortage of professionals in that field[,] 
as well as an excess expenditure with people with physical therapy problems helps one understand why 
[her] endeavor stands to produce benefits beyond the company's prospective patients and clients." 5 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. 
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 business plan claims "to make gradual investments in personnel 
over the next 5 years," anticipating 10 employees in the first year to 14 employees in the fifth year and 
including an ergonomics specialist, physical therapist and assistant, officer manager, accountant, and 
receptionist. 6 In addition, the plan projects "sales reaching $1.5M by Year 5." 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The record includes articles discussing the demand for physical therapists and overall healthcare workers in the United 
States. 
5 The record contains an advisory opinion letter fl-om~------=-,--------- who discussed the 
impact of the physical therapy field without showing the national importance of the Petitioner's specific proposed endeavor 
consistent with the Dhanasar framework. 
6 The business plan does not specify the number of anticipated physical therapists from the first to fifth years. 
3 
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 established 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. 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 also has not shown that her company's projected future staffing levels stand to provide 
substantial economic benefits to the I ,I New Jersey area 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 from 10 to 14 employees will substantially affect either New Jersey's or the United 
States' tax revenue or the New Jersey or U.S. 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. 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
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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