dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 12, 2023 In Re: 8355231 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a physical therapist and entrepreneur who 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 determined that the Petitioner did not establish that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest. 1 
Specifically, applying the three-prong analytical framework set forth in Matter ofDhanasar, 26 I&N 
Dec. 884, 889 (AAO 2016), the Director concluded that the Petitioner: (1) did not establish that her 
endeavor has national importance, 2 (2) did not demonstrate that she is well-positioned to advance the 
endeavor, and (3) did not show that on balance, waiving the job offer requirement would benefit the 
United States. Id. The matter is now before us on appeal. 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 ofChristo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de novo review, we will dismiss the appeal because the Petitioner did not establish that her 
specific proposed endeavor has national importance and thus, she did not meet the national importance 
requirement of the first prong of the Dhanasar framework. See Matter ofDhanasar, 26 I&N Dec. at 
1 Although the Director did not determine whether the Petitioner qualifies for the underlying EB-2 visa classification , the 
Petitioner has not established her eligibility for a national interest waiver on appeal and we therefore do not need to remand 
the decision for the Director to make an EB-2 detennination . We further note that the Petitioner 's diploma and 
corresponding transcript show that she attended Universidadd !in Brazil where she completed a physical 
therapy program from 2006 until 2008 resulting in a "Titulo de Bacharel" degree. According to the American Association 
of Collegiate Registrars and Admissions Officers Electronic Database for Global Education, the "Titulo de Bacharel" may 
be attained after three to five years of study and therefore does not establish that the Petitioner completed four years of 
undergraduate study. As such, the record does not show that the Petitioner attained the equivalent of a U.S. bachelor's 
degree followed by five years of progressive experience in the specialty and would need to address this deficiency in any 
future proceedings . See 8 C.F.R. § 204.5(k)(2) (requiring a U.S. bachelor 's degree or foreign equivalent followed by five 
years of progressive experience in the specialty to determine that a petitioner is an advanced degree professional) . 
2 The Director's decision referred to and concurred with USCIS's favorable finding on the issue of substantial merit in the 
previously issued request for evidence (RFE). 
884. Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's appellate arguments regarding the two remaining Dhanasar 
prongs. 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 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). 
In addressing the issue of national importance, the Director concluded that the Petitioner did not show 
that her endeavor would impact the field of physical therapy on a broader scale beyond her individual 
clients or that its impact would rise to the level of national importance. The Director also rejected the 
Petitioner's argument that a shortage of physical therapists warrants waiver of the labor certification 
requirement, noting that such shortage would instead likely be viewed as "a positive factor" in favor 
of granting the labor certification a national interest waiver is not granted based upon need. And 
despite acknowledging the hiring projections in the Petitioner's business plan, the Director pointed to 
the lack of evidence showing that the Petitioner's endeavor would offer California or its residents a 
substantial economic benefit through employment levels or business activity. The Director also 
addressed an industry report that the Petitioner submitted, pointing out that the report discusses the 
impact of physical therapists collectively rather than the impact of the Petitioner's specific endeavor, 
as stressed in the Dhanasar framework. See Matter of Dhanasar, 26 I&N Dec. at 884. Ultimately, 
the Director determined that the Petitioner did not provide evidence that her specific endeavor as a 
physical therapist, rather than the cumulative effect of all physical therapists, stands to have national 
or global implications. 
On appeal, the Petitioner argues that the Director "imposed novel substantive and evidentiary 
requirements beyond those set forth in the regulations." However, the Petitioner does not point to 
specific examples of this within the Director's request for evidence (RFE) or denial. Importantly, the 
Petitioner also does not offer a detailed analysis explaining the particular ways in which the Director 
"imposed novel substantive and evidentiary requirements" in denying the petition. 
The Petitioner further alleges that the Director "did not apply the proper standard of proof in this case, 
instead imposing a stricter standard ... to the detriment of the appellant." Except where a different 
standard is specified by law, the "preponderance of the evidence" is the standard of proof governing 
immigration benefit requests. See Matter of Chawathe, 25 I&N Dec. at 375 (AAO 2010); see also 
Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofSao Hoo, 11 I&N Dec. 151, 152 
(BIA 1965). Accordingly, "preponderance of the evidence" is the standard of proof governing national 
interest waiver pet1t10ns. See generally l USCIS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that she has provided evidence 
sufficient to demonstrate her eligibility for the EB-2 classification and a national interest waiver, she 
does not further explain or identify a specific instance in which the Director applied a standard of 
proof other than the preponderance of evidence in denying the petition. 
The Petitioner also argues that the Director did not "give due regard" to her resume, business plan, 
letters of recommendation, or the industry reports she previously submitted. However, as noted above, 
the Director specifically mentioned the hiring projections in the Petitioner's business plan and 
addressed an industry report the Petitioner previously submitted, explaining how the evidence falls 
short of demonstrating the national importance of the proposed endeavor. Further, while the Petitioner 
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stresses her credentials and work experience, which were also highlighted in her resume and 
recommendation letters, such evidence addresses the Petitioner's knowledge, skills, education, and 
experience; these are considerations under Dhanasar's second prong, which "shifts the focus from the 
proposed endeavor to the foreign national." Matter ofDhanasar, 26 I&N Dec. at 890. Evidence of 
the Petitioner's credentials and experience in the field of physical therapy does not demonstrate the 
national importance of the proposed endeavor or establish that the impact of the endeavor would 
extend beyond the Petitioner's patients and prospective employees of her business. In sum, the 
Petitioner primarily focuses on second prong factors that demonstrate her knowledge and experience 
and makes no compelling arguments explaining how her endeavor's impact would attain the level of 
having first prong national importance. 
Accordingly, we adopt and affirm the Director's analysis and decision regarding the national 
importance of the Petitioner's endeavor. See Matter o_fBurbano, 20 I&N Dec. 872,874 (BIA 1994); 
see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and 
affirming the decision below has been "universally accepted by every other circuit that has squarely 
confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding 
that appellate adjudicators may adopt and affirm the decision below as long as they give 
"individualized consideration" to the case). As noted above, we reserve the Petitioner's appellate 
arguments regarding the two remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. at 25. 
ORDER: The appeal is dismissed. 
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