dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 20, 2024 In Re: 33944715 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist assistant, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, 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 did not 
establish the Petitioner's eligibility for EB-2 immigrant classification as an alien of exceptional ability 
or the requested national interest waiver. 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We 
review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&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. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b )(2)(A) of the Act. 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
2 USCIS has previously confinned the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5 . 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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,3 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 
The Director determined the Petitioner met three categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii), 
but concluded the record did not establish she has a degree of expertise significantly above that 
ordinarily encountered in her field. 4 On appeal, the Petitioner generally disagrees with the Director's 
conclusions and claims that she meets all six of the evidentiary criteria, and is therefore an individual 
of exceptional ability. We disagree. As stated, meeting the evidentiary criteria, alone, is not sufficient 
to establish eligibility as an individual of exceptional ability. The evidence must also establish, in its 
totality, that the petitioner is recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 5 
Upon de novo review of the record, we agree with Director's ultimate conclusion that the Petitioner 
has not established she is an individual of exceptional ability. And for the reasons discussed below, 
we withdraw the Director's determination that the Petitioner met the evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii)(C) and (E). 
A. The Regulatory Criteria 
Evidence in the form ofletter(s)from current orformer employer(s) showing that the alien 
has at least ten years offitll-time experience in the occupation for which he or she is being 
sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
To satisfy the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B), a petitioner must submit "letter(s) from 
current or former employer(s) showing that the [petitioner] has at least ten years of full-time 
experience in the occupation for which he or she is being sought." On appeal, the Petitioner contends 
that she satisfies this criterion based on the evidence in the record, including the letters of 
3 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 USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
4 The Director determined the Petitioner met the criteria at 8 C.F.R. §§ 204.5(k)(3)(ii)(A), (C), and (E) relating to an official 
academic record, a license to practice the profession, and membership in professional associations. 
5 See generally 6 USCIS Policy Manual, supra, at F.5(B)(2). 
2 
recommendation, employment verification letters, and independent contractor agreements, which 
corroborate her experience in the occupation. 
Specifically, on appeal, the Petitioner submitted the following evidence to establish her ten-years of 
full-time experience in the occupation: 
• Letter from ________ for the I confirming the 
Petitioner provided physical therapist services to thel since 2013; 
• Letter from I Istating the Petitioner was an administrator and teaching 
assistant for the organization from 2008 to 2015; 
• Letter froml Iconfirming that the Petitioner worked 40 
hours per week as an intern for this company from March 2010 to July 2015; 
• Letter from ___________ stating the Petitioner worked 40 hours per week 
beginning anuary 2021 to present, along with a copy of her independent contract agreement 
with 
• Petitioner's independent contract agreement with I I (DBA: I I 
I 
• Two letters from one in which the representative of 
_____ states she worked as a physical therapy assistant for this company from 
December 2022 to November 2023 on a part-time basis, and currently works on an as-needed 
basis, and the other which states she has worked for the company as a physical therapy assistant 
since January 2023; 
• Letter from confirming her employment with the company on a per 
diem status from June 2023 to December 2023; and 
• Letter from confirming she provided services as a physical therapy 
assistant on a contractual basis from May 2022 to December 2022. 
In addition, while not discussed in her appeal brief, the record also contains a letter froml I 
confirming she was an unpaid trainee in physiotherapy observation from March 2010 
to December 2015 for six hours per week. 
After a review of the record, we identified numerous inconsistent claims and evidence relating to the 
Petitioner's employment history. Accordingly, we issued a notice of intent to dismiss (NOID) to notify 
the Petitioner of this derogatory information, and inform her of our intent to dismiss the appeal. We 
advised her that she must resolve these inconsistencies with independent, objective evidence pointing 
to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner responded 
to the NOID with the submission of additional evidence, purporting to explain the inconsistencies. 
While the Petitioner's response addresses some of the inconsistencies outlined in our NOID, her 
response does not provide sufficient explanation to overcome our concerns regarding the credibility 
of the claims and evidence submitted. 
First, in our NOID, we informed the Petitioner that the record contradicted her claims that she worked 
40 hours per week withl I Specifically, we acknowledged the submission of an unsigned and 
undated letter from a representative of stating that the Petitioner worked 40 hours per week 
beginning in January 2021 and the Form 9089, Application for Permanent Employment Certification, 
3 
Appendix A, which indicated she worked as a physical therapist assistant with for 40 hours per 
week from February 2021 to the present. However, we explained that her contract with and her 
tax documents contradict these claims. Upon review, we concluded that given the hourly rate of $45-
55 identified in the contract, and her total earnings for 2021 and 2022, she would have averaged less 
than 10 hours per week in 2021, and less than 20 hours per week in 2022. 
In responseto the NOID, the Petitioner submitted a newly executed letter from a representative of 
which states that the Petitioner's work and compensation "has been determined by patient 
demand and scheduling rather than a fixed work schedule . . . [ and her] working hours have not 
consistently aligned with those outlined in her initial contract." In addition, the Petitioner asserts in 
her NOID response that she "acknowledges the discrepancy between her initial contract with I I 
which stipulated a full-time position at $45-50 per hour for 40 hours per week, and the actual earnings 
reflected on her paystubs and tax records for 2021 and 2022." Yet the contract did not stipulate 
whether the employment was intended to be full-time or identify an anticipated number of hours the 
Petitioner would work. As stated in our NOID, this information was confirmed in the initial letter 
submitted from I I and in the Petitioner's Form 9089, Appendix A. And rather than addressing 
these erroneous assertions made, the Petitioner instead incorrectly claims that the inconsistency stems 
from her contract executed in 2021. Accordingly, the Petitioner's statements do not resolve these 
inconsistencies. 
In our NOID we also informed the Petitioner that the record contained inconsistent information 
relating to her employment with I I including that the documentation provided in the initial filing 
identified her start date with this office as 2012, but in response to the Director's request for evidence 
(RFE), the documentation indicated she began the employment in 2010. In response, the Petitioner states 
that this discrepancy was due to inaccurate guidance provided to her from a consultancy she engaged to 
prepare her petition. She asserts that the consultancy told her "no experience before the 10-year span 
mattered. "6 Yet, while she provides proof of her engagement with the consultancy, she does not provide 
evidence corroborating this claim, nor is the evidence in the record consistent with this claim. In the 
curriculum vitae submitted with the initial filing, the Petitioner included experience beginning in 2008, 
and she also submitted letters corroborating her employment beginning in 2008 with her initial filing, 
including a letter froml Icorroborating her employment beginning in March 2010. Accordingly, 
the Petitioner's explanation does not align with the evidence in the record, nor does she sufficiently 
address this inconsistency. Nonetheless, we acknowledge the newly issued letter froml !verifying 
her employment with this company did begin in March 2010. 7 
Similarly, in the NOID, we advised the Petitioner that her claimed employment serving thel 
beginning in 2013 contradicted her claimed employment with 
in Brazil during that same time period. In response, the Petitioner asserts that this contradiction was the 
result of a typographical error in the letter provided by a councilman for the ________ 
6 While the Petitioner does not clarify which ten-year span, presumably she is referring to experience occurring prior to 
2012. 
7 We also note that in the newly executed letter from Dr. owner of both he 
states that he incorrectly indicated the Petitioner worked withthrough December 2015, when she actually ended her 
employment in July 2015. However, the initial letter from Dr. I Idid state the Petitioner worked withe=] 
through July 2015. It was the letter issued confirming her part-time employment with which indicated an end date 
of December 2015. 
4 
which was not identified by the consultancy she used to prepare her petition. In support, the Petitioner 
provides a new letter from the councilman confirming her start date in January 2023 not 2013, but the 
letter does not address any claimed typographical error in his prior letter. Notably, while the Petitioner 
asserts that the typographical error only occurred in the letter provided by the councilman, she does not 
address the fact that her appeal brief stated that this letter showed she had been working in the field since 
2013. 
These discrepancies, most notably the unresolved discrepancies relating to the Petitioner's claimed 
employment with I I cast doubt on her qualifying experience. If a petitioner fails to resolve 
inconsistencies after users provides an opportunity to rebut or explain, then the inconsistencies may 
lead users to conclude that the facts stated in the petition are not true. Matter ofHo at 591. And, 
given the unresolved discrepancies, the credibility of this evidence is diminished. Id. (confirming that 
"[d]oubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence.") 
Nevertheless, even ifwe were to disregard these discrepancies, the Petitioner still has not satisfied this 
criterion. The updated letter from does not confirm how many hours she worked, only that her 
work was determined "by patient demand and scheduling." Similarly, the letter from I I 
I Iconfirms that she worked on a "per-diem capacity" for a minimum of four hours per week, 
the letter from states she worked on an "as needed" basis, and the letter from 
states she worked 12-20 hours per week. 8 In addition, while the Petitioner 
has submitted a new letter from the councilman for the Ihe does not indicate 
the number of hours she worked, nor has she shown that the councilman is a "current or former 
employer( s )."9 
Further, the Petitioner has not shown that her full-time experience with I I as a trainee in 
physiotherapy observation, or her part-time experience with in the same role, constitutes 
expenence m the occupation sought. The letters confirming her experience as a trainee m 
physiotherapy observation do not provide details regarding the specific nature of the work, or 
otherwise explain how working as a trainee in physiotherapy observation constitutes working in the 
occupationof physical therapy assistant. And the letter from the representative ofl I 
also does not indicate whether the Petitioner worked in a full-time capacity, nor has she 
explained how serving as a teaching assistant and teaching capoeira classes constitutes experience in 
the occupation of physical therapy assistant. 
For all the foregoing reasons, we conclude that the Petitioner has not demonstrated that she has at least 
10 years of full-time experience in the occupation of physical therapist assistant. 
8 We also note that the letters from corroborate employment which 
occurred after the Petitioner filed this petition in August 2023, and therefore she cannot rely on that experience to satisfy 
this criterion. A petitioner must establish eligibility for the benefit they are seeking at the time the petition is filed. 
8 C.F.R. § 103.2(b)(l); Matter ofKatigbak 14 l&N Dec. 45, 49 (Comm'r 1971). 
9 See 8 C.F.R. § 204.5(k)(3)(ii)(B), 
5 
A license to practice the profession or certification for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
The Director determined the Petitioner met this criterion due to her submission of her physical therapy 
assistant license from the state of Florida. The plain language of the regulation requires the Petitioner 
to provide "a license to practice the profession or a certification for a particular profession or occupation." 
8 C.F.R. § 204.5(k)(3)(ii)(C) [emphasis added]. Profession is defined as one of the occupations listed 
in section 10l(a)(32) of the Act, as well as any occupation for which a U.S. baccalaureate degree or 
its foreign equivalent is the minimum requirement for entry into the occupation. 10 
8 C.F.R. § 204.5(k)(2). Here, because the Petitioner has not established that the occupation of 
personal therapy assistant requires the attainment of a U.S. baccalaureate degree or its foreign 
equivalent as the minimum requirement for entry, she has not shown that her physical therapy assistant 
license is a license to practice a "profession" as defined by the regulatory definition at 8 C.F.R. 
§ 204.5(k)(2). Without more, we cannot conclude that the record establishes she satisfies the plain 
language of this criterion and withdraw the Director's determination to the contrary. 
Evidence that the Petitioner has commanded a salary, or other remuneration for services, 
which demonstrate exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
To satisfy this criterion, the evidence must show that an individual has commanded a salary or 
remuneration for services that is indicative of their claimed exceptional ability relative to others 
working in the field. 11 
The record contains a copy of the US. Bureau of Labor Statistics printout indicating the national 
average wage for physical therapy assistants is $30 per hour or $62,770 per year, along with experience 
letters verifying the Petitioner's hourly compensation and copies of her independent contractor 
agreements. Additionally, the Petitioner submitted copies of her 2021 and 2022 tax documents 
indicating her total earnings from 2021 and 2022 were $20,440 and $42,161, respectively. 
The Petitioner asserts that, because she received an "average of $50.00 per hour worked, her 
compensation is "well above the market average," and she satisfies this criterion. First, the record 
shows that her compensation ranges from $15-$5 5 per hour, which is not representative of an average 
hourly rate of $50. Additionally, the Petitioner has not explained how the average salary information 
for the entire United States compares to her remuneration in thel IFlorida region working as an 
independent contractor. Moreover, given that the Petitioner's annual earnings for 2021 and 2022 were 
significantly lower than the mean annual earnings reported by the US. Bureau ofLabor Statistics, the 
Petitioner has not shown that her remuneration is indicative of exceptional ability. The Petitioner 
bears the burden of establishing that they meet each criterion with relevant, probative, and credible 
evidence. Matter of Chawathe, 25 I&N Dec. at 375-376. She has not done so here, and we thus 
conclude that she has not satisfied this criterion. 
10 Profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 10l(a)(32) of the Act. 
11 See 6 USCIS Policy Manual, supra, at F.5(B)(2). 
6 
Evidence ofmembership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Director determined the Petitioner met this criterion due to her membership in the American 
Physical Therapy Association (APTA). We disagree. As stated, the regulatory definition of 
"profession" includes an occupation whose minimum requirement for entry is a U.S. baccalaureate 
degree or its foreign equivalent. 8 C.F.R. § 204.5(k)(2). To satisfy this criterion, the Petitioner 
submitted a copy of her certificate of membership and a printout from APTA' s website identifying 
licensure requirements for physical therapists and physical therapist assistants, and clarifying that 
APTA is not involved in the licensure process. The Petitioner did not submit evidence demonstrating 
that APTA requires at least a U.S. baccalaureate degree or its foreign equivalent as a minimum 
requirement for membership, or that it otherwise constitutes a professional association as contemplated 
by the regulatory definition. See 8 C.F.R. § 204.5(k)(2). As such, we do not agree that the Petitioner 
has established her membership in "professional associations," and we withdraw the Director's 
determination to the contrary. 
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). 
Because the Petitioner cannot satisfy at least three of the criteria at 8 C.F.R. § 204.5(k)(3)(ii) even if 
we were to conclude that she met the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), we reserve our opinion 
regarding the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 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). We 
will nonetheless consider the documentation submitted for this criterion in our final merits 
determination. 
B. Final Merits Determination 
Even though the Petitioner has not established that she meets three of the six evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii), we nonetheless have reviewed the record in the aggregate, and agree with 
the Director that the Petitioner has not shown she possesses a degree of expertise significantly above 
that ordinarily encountered in her field. 
In reviewing the totality of the evidence in a final merits determination, we consider not only the 
quantity of the evidence, but also the quality (including relevance, probative value, and credibility). 12 
As previously stated, the burden of proof lies with the Petitioner, and therefore her assertions must be 
both corroborated and credible. Accordingly, while we acknowledge the evidence pertaining to the 
Petitioner's experience in the field, given the unresolved discrepancies, the Petitioner has not shown 
this evidence to be credible. See Matter ofHo at 591 ( confirming that "[ d]oubt cast on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence.") 
12 Matter of Chawathe, 25 l&N Dec. at 376; Matter of E-M-, 19 l&N Dec. 77, 79-80see also 6 USCIS Policy Manual, 
supra, F.5(B)(2). 
7 
Additionally, while we acknowledge that the evidence demonstrates that the Petitioner has education, 
training, and experience as a physical therapy assistant, as well as memberships in associations 
supporting the physical therapy field, this evidence does not establish she possesses expertise 
significantly above that ordinarily encountered in the field. The evidence of the Petitioner's 
educational credentials, training certificates and physical therapist assistant license show that she has 
earned the minimum qualifications to work in her field. 
On appeal the Petitioner asserts that throughout her career she has "demonstrated exceptional skills 
that have been consistently recognized and rewarded," and that her "unique expertise and exceptional 
abilities" set her apart in the field of physical therapy; however, the evidence does not support these 
assertions. For example, the Petitioner has not explained what specific unique experience she has that 
shows her expertise is sign[ficantly above others in her field. And while the record contains multiple 
letters of recommendation from respected individuals in her field, the letters do not indicate her 
experience has provided her with expertise above others in the field. One letter praises her for her 
expertise in "keniso taping, orthopedics, and capoeira," but the writer did not explain how this sets her 
apart from others in her field, nor do they elaborate on the relevance of her experience in capoeira to 
her duties as a physical therapist assistant. Likewise, the Petitioner states that her broad experience 
"solidifies [her] reputation as a high-impact" physical therapy assistant and that she has provided a 
broad spectrum of patient care "ranging from orthopedics and sports rehabilitation to neurological and 
geriatric therapy," but she has not explained how this care distinguishes her as having expertise 
significantly above others in the field, as it appears to be indicative of the care normally provided by 
physical therapy assistants. 
Additionally, she also highlights her designation on the dean's list and her clinical excellence award, 
which were both earned while she was pursuing her associate's degree. As previously noted, the 
record indicates that an associate' s degree is a prerequisite to entering the physical therapy assistant 
field. As such, it is not apparent how these recognitions, which she received before entering the field 
when considered along with her education and experience would establish her expertise is significantly 
above those working in the field. A petitioner must support assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. 
The record as a whole does not establish the Petitioner's eligibility as an individual of exceptional 
ability as it does not demonstrate that she meets three of the six regulatory criteria at 
8 C.F.R. § 204.5(k)(3)(ii) or that she has obtained a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). 13 
C. National Interest Waiver 
The Petitioner has not established that she is eligible for EB-2 immigrant classification. Since this 
issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the remaining 
issues, including whether she is eligible for a national interest waiver. See Bagamasbad at 25 ("courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reached"). 
13 See also 6 USCIS Policy Manual, supra, F.5(B)(2). 
8 
III. CONCLUSION 
The Petitioner has not demonstrated that she qualifies as an individual of exceptional ability under 
section 203(b )(2)(A) of the Act. Accordingly, the Petitioner has not established eligibility for the 
immigration benefit sought. 
ORDER: The appeal is dismissed. 
9