dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 30, 2024 In Re: 31720775 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a 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 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 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 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. 
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, 1 grant a national interest waiver if 
the petitioner demonstrates that: 
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in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 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). 
• 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. 
TI. ANALYSIS 
The Director determined that the Petitioner qualifies as a member of the professions holding an 
advanced degree, but she did not establish that her proposed endeavor has national importance as 
required to establish eligibility for a national interest waiver under the Dhanasar framework. For the 
reasons set forth below, we conclude that the Petitioner has not met the first prong of the Dhanasar 
framework and will dismiss the appeal accordingly. 2 
On appeal, the Petitioner alleges that the Director "imposed novel substantive and evidentiary 
requirements beyond those set forth in regulations." Except where a different standard is specified by 
law, the "preponderance of the evidence" is the standard of proof governing immigration benefit 
requests. See Chawathe, 25 I&N Dec. at 375; see also Matter ofMartinez, 21 I&N Dec. 1035, 1036 
(BIA 1997); Matter ofSoo Hoo, 11 I&N Dec. 151, 152 (BIA 1965). Accordingly, the "preponderance 
of the evidence" is the standard of proof governing national interest waiver petitions. See generally 1 
USCIS Policy Manual, E.4(B), https://www.uscis.gov/policy-manual. While the Petitioner asserts on 
appeal that she has provided evidence sufficient to demonstrate her eligibility for a national interest 
waiver, she does not further explain or identify any specific instance in which the Director applied 
requirements or a standard of proof other than the preponderance of evidence in denying the petition. 3 
The Petitioner further argues the Director "did not give due regard to" certain pieces of evidence, 
including: her business plan and resume, evidence of her work in the field, letters of recommendation, 
and industry reports and articles. However, the Director noted that their decision was the result of "a 
review of the petition and all of the supporting evidence." Throughout the decision, the Director also 
specifically referenced the evidence identified by the Petitioner. Finally, we have reviewed the entirety 
of the record de novo in rendering our decision on the Petitioner's appeal. 
The Director determined that the Petitioner did not establish that her proposed endeavor met the 
national importance element of the first prong of the Dhanasar framework. Specifically, the Director 
found the Petitioner did not establish her proposed endeavor would have broader implications to the 
field of physical therapy or have significant potential to employ U.S. workers or otherwise have 
substantial positive economic effects such that she established its national importance. The first prong 
of Dhanasar, 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. In determining 
2 If the Petitioner does not meet the first prong, the evidence is dispositive in finding the Petitioner ineligible for the national 
interest waiver, and we need not address the second and third prongs. 
3 We also note that the Director's request for evidence (RFE) explained the deficiencies and concerns regarding the 
Petitioner's initial filing relating to her eligibility for a national interest waiver and provided a non-exhaustive list of 
documentation and material the Petitioner could submit in support of her petition. Therefore, the Director followed the 
applicable regulation and procedure in adjudicating this petition. See 8 C.F.R. § 103.2(b )(8). 
2 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. 
The Petitioner asserts on appeal that her proposed endeavor of corning to the United States to work as 
a physical therapist and entrepreneur, including opening her own physical therapy business, will 
generate jobs for U.S. workers and positively contribute to the U.S. economy. Although any basic 
economic activity has the potential to positively impact a local economy, the Petitioner has not 
demonstrated how the economic activity directly resulting from her proposed endeavor would rise to 
the level of national importance. An endeavor may have national importance if it "has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area .... " Id. at 890. In her business plan, the Petitioner indicated her 
proposed company would generate 38 jobs and generate a cumulative $7.8 million dollars in wages to 
U.S. workers in the first five years of business. However, the business plan does not provide sufficient 
explanation for the basis of these projections. Further, even if sufficient basis were provided for the 
proposed endeavor's revenue and job creation projections, these figures do not establish that the 
Petitioner's company would operate on a scale rising to the level of national importance. The 
Petitioner has not explained how her proposed employment metrics and revenue would have impact 
beyond her business's area of intended operations. Upon de novo review, we find no error in the 
Director's conclusion that she did not establish her proposed endeavor would have significant potential 
to employ U.S. workers or otherwise have substantial positive economic effects. 
The Petitioner further argues that her proposed endeavor will help alleviate the national physical 
therapist shortage and will be beneficial in promoting wellness, including helping the elderly and 
individuals with disabilities. She further asserts on appeal that her "proposed endeavor is 
unquestionably of national importance, given the significant impact of the role that business 
development professional play in every type of business." In addition, the Petitioner submitted articles 
discussing the importance of the physical therapy field in reducing opioid abuse and hospital 
admissions, particularly through the use of appropriate treatment to manage chronic pain. When 
determining the national importance of a proposed endeavor, the relevant question is not the 
importance of the industry, sector, or profession in which the individual will work; rather, we focus 
on "the specific endeavor that the foreign national proposes to undertake." Dhanasar at 889. In 
Dhanasar, 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. Although the Petitioner's specific venture has the potential 
to provide valuable services to her clients, she did not establish the specific proposed endeavor will 
have substantial national implications or have a broader impact beyond the individual patients served 
by her company. The Petitioner has also not established that her proposed endeavor stands to 
significantly reduce a national labor shortage in the physical therapy field as claimed. Moreover, 
shortages of qualified workers are directly addressed by the U.S. Department of Labor through the 
labor certification process. While we acknowledge the importance of the fields of healthcare and 
physical therapy, we find no error in the Director's conclusion that the Petitioner did not establish her 
proposed endeavor would have broader implications to the overall field of physical therapy to establish 
its national importance. See Dhanasar at 893 (finding the petitioner did not establish the proposed 
activities would impact the field more broadly to rise to the level of national importance). 
3 
Accordingly, we find that the record does not demonstrate national importance of the Petitioner's 
proposed endeavor as required by the first prong of the Dhanasar precedent decision, and the 
Petitioner has not demonstrated eligibility for a national interest waiver. As 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 INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) (stating that "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. 
ORDER: The appeal is dismissed. 
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