dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 24, 2024 In Re: 31281629 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur and physical therapist, seeks employment-based second preference 
(EB-2) 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 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 record establishes 
that the Petitioner qualifies as a member of the professions holding an advanced degree, but the record 
does not establish that the Petitioner is eligible for a national interest waiver as a matter of discretion. 
The matter is now before us on appeal pursuant to 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five 
years of progressive experience in the specialty is the equivalent of a master's degree. 8 C.F.R. 
§ 204.5(k)(2). 
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 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (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; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
A. EB-2 Classification 
The Director concluded that the Petitioner qualified for the EB-2 classification as a member of the 
professions holding an advanced degree based on her physiotherapist degree along with her years of 
experience in the specialty. However, as the record does not establish by a preponderance of the 
evidence that the Petitioner otherwise merits a national interest waiver as a matter of discretion, we 
will reserve the issue of the Petitioner's eligibility for the EB-2 classification. 2 
B. National Interest Waiver 
1. Substantial Merit 
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. Dhanasar, 26 I&N 
Dec. at 889. The Petitioner's proposed endeavor is, "[t]o run a physical therapy clinic in thel I 
area, Florida, specializing in physical therapy assessment, pain relief and prevention, methods to avoid 
surgery, improved mobility and balance, trauma, paralysis, stroke recovery, accident prevention, and 
rehabilitation services." The record includes industry reports and articles on the benefits of physical 
therapy, the impact of chronic illness on mental health and the economy, promoting health in the 
workplace; along with information on the growing shortage of workers in the physical therapy field in 
the United States. We conclude that the Petitioner's proposed endeavor has substantial merit. 
2. National Importance 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Id. The Director determined that the record did not establish the Petitioner's 
proposed endeavor would have a broader impact on the field, rising to the level of national importance. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 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 unnecessmy to the ultimate decision); see also Matter o/L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) 
( declining to reach alternative issues on appeal where an applicant is othe1wise ineligible). 
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On appeal, the Petitioner states that the proposed endeavor will be a,"[ m ]ultifaceted contributor to the 
broader field of healthcare. Through its specialized services, the clinic addresses the specific needs of 
senior citizens, participates in the imperative to reduce healthcare costs, and indirectly enhances 
workplace productivity." However, we conclude that the record does not establish the proposed 
endeavor will have a broader impact on the field. 
Dhanasar states a proposed endeavor may have national importance because it has, "national or even 
global implications within a particular field, such as certain improved manufacturing processes or 
medical advances." Dhanasar 26 I&N Dec. at 889. However, 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. 
Similarly, the record does not establish that the Petitioner's proposed endeavor will impact more than 
the Petitioner's direct client base. For example, the business plan states that the Petitioner will make 
weekly videos online to show new discoveries within the physical therapy field and innovative 
treatments using new technologies. However, these discoveries and innovative treatments are not 
proprietary to the Petitioner; in other words, she is not making original discoveries and innovative 
treatments. Instead, she is disseminating information others have found or started in the field and the 
record does not establish how sharing publicly available information would have a broader impact on 
the field, rising to the level of national importance. Further, she states that these videos are a marketing 
tool to obtain more clients. Therefore, while these direct clients may directly benefit from this 
information and the Petitioner's services, the record does not establish that they will extend beyond 
her clients and have a broader impact. In addition, the record contains an expert opinion letter that 
states the Petitioner, "[ w ]ill work in her field of physical therapy introducing her innovative 
methodologies to improve the lives of the American people." However, there is no explanation of 
what her "innovative methodologies" are or how they will improve the lives of the American people 
more broadly. Therefore, we conclude that the record does not establish the Petitioner's proposed 
endeavor will have a broader impact on the field of physical therapy. 
The Petitioner emphasizes that her proposed endeavor will be focused on the elderly population and 
that the United States is seeing a demographic shift towards an aging population and therefore, her 
proposed endeavor is "timely and relevant on a national scale." The Petitioner points to the evidence 
in the record highlighting an aging population, the prevalence of chronic diseases amongst this 
population, and emphasizing the importance of physical therapy to address the problem. Although 
her proposed endeavor may be timely and relevant, for a proposed endeavor to have national 
importance, it must have a broader prospective impact. However, as stated above, the record does not 
establish the proposed endeavor will have an impact beyond the direct clients she will serve. 
Dhanasar states a proposed endeavor may have national importance if it has, "significant potential to 
employ U.S. workers" or "other substantial positive economic effects, particularly in an economically 
depressed area." Id. at 890. The Petitioner asserts her company will employ 7 employees in its first 
year of operation and 18 employees by the end of its fifth year of operation. In addition, using industry 
calculations the Petitioner estimates that her company will lead to the creation of 37 indirect jobs. She 
states these jobs will benefit the economy by paying taxes and that the employees will spend money 
on goods and services in the area, increasing the consumer base. The record does not establish that 
the staffing levels are substantial enough to rise to the level of national importance. In addition, the 
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record does not show that the economic impact these employees will have on the local economy will 
be substantial or that the proposed endeavor will be in an "economically depressed area." 
The Petitioner states that there are various government initiatives for the industry showing that the 
physical therapy industry enhances societal welfare. In addition, the expert opinion letter discusses 
the importance of the field of physical therapy stating, "[p]hysical therapists play vital roles in today's 
health care environment and are recognized as essential providers of rehabilitation and habilitation, 
performance enhancement, and prevention and risk-reduction services." We acknowledge the 
importance of the industry; however, 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." Dhanasar at 889. Here, the Petitioner improperly relies upon 
the importance of the industry to establish the national importance of her proposed endeavor. Without 
sufficient documentary evidence of the specific proposed endeavor's broader impact in the industry, 
the Petitioner's proposed endeavor does not meet the "national importance" element of the first prong 
of the Dhanasar framework. 
Finally, the Petitioner contends that there is a growing shortage of those in the physical therapy field 
and points to USCIS designating registered nurses and physical therapists as shortage occupations 
under the U.S. Department of Labor's "Schedule A." The record does not establish that her proposed 
endeavor stands to impact or significantly reduce the claimed national shortage. Further, shortages of 
qualified workers are directly addressed by the U.S. Department of Labor through the labor 
certification process. In addition, per the business plan, the proposed endeavor may create new 
physical therapy jobs. However, the United States does not have a shortage of physical therapy jobs, 
but qualified workers to fill them. 
We note that the appeal included a new business plan along with additional industry articles and 
reports. However, we will not consider this evidence for the first time on appeal as it was not presented 
before the Director. See Matter ofSoriano, 19 I&N Dec. 7 64, 766 (BIA 1988) (providing that if "the 
petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it 
for the record before the denial, we will not consider evidence submitted on appeal for any purpose" 
and that "we will adjudicate the appeal based on the record of proceedings" before the Chief); see also 
Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). 
While we do not discuss each piece of evidence individually, we have reviewed and considered the 
record in its entirety. As the Petitioner's proposed work does not meet the first prong of the Dhanasar 
framework, 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 
Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude by a preponderance of the evidence that the Petitioner has not established that she 
is eligible for or otherwise merits a national interest waiver as a matter of discretion. 
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ORDER: The appeal is dismissed. 
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