dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re: 17738381 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 25, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physical therapist, seeks second preference immigrant classification as an individual 
of exceptional ability 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 record did not 
establish that the Petitioner is eligible as an individual of exceptional ability. In addition, while the 
Director found that the Petitioner's proposed endeavor was of substantial merit, he concluded that it 
was not of national importance, and that the Petitioner was not well positioned to advance that 
endeavor. Finally , the Director concluded that, on balance, it would not be beneficial to the United 
States to waive the requirement of a job offer, and thus of a labor certification, in the Petitioner's case. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
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 of job 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiary is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. § 
204.5(i)(3)(i). 
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). Dhanasar states that after EB-2 eligibility has been 
established, USCIS may, as a matter of discretion, grant a national interest waiver if the petitioner 
demonstrates: ( l) 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) 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-pa11-f-chapter-5. 
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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. 2 
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 
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 Petitioner is a physical therapist, and the record shows that he holds a valid license to practice as 
a physical therapist in Florida. Although he initially claimed eligibility as both a member of the 
professions holding an advanced degree and as an individual of exceptional ability, he did not address 
the former in response to the Director's request for evidence (RFE) and does not do so on appeal. We 
will therefore consider only his eligibility as an individual of exceptional ability below. 
2 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expertise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar. 26 I&N Dec. at 886 n.3. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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A. Individual of Exceptional Ability 
As indicated above, in order to meet the initial evidence requirements for this classification, a 
petitioner must show that they meet at least three of the evidentiary criteria under 
8 C.F.R. § 204.5(k)(3)(ii). In his decision, the Director determined that the Petitioner met the requisite 
three criteria through evidence of his bachelor's degree in physical therapy, physical therapist license, 
and membership in the American Physical Therapy Association, Florida Physical Therapy 
Association, and American Academy of Sleep Medicine. On appeal, the Petitioner asserts that he also 
meets a fourth criterion, at 8 C.F.R. § 204.5(k)(3)(ii)(F), through evidence of citations to his published 
paper and reference letters. However, as we agree that he has established that he meets the initial 
evidentiary requirement, we need not consider whether he also meets additional criteria. Rather, we 
will consider this evidence together with the balance of the record to determine whether the Petitioner 
is recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field, and is therefore eligible for the requested classification. 
In reviewing the totality of the evidence in a final merits determination, we consider the quality of the 
evidence. 4 The evidence of the Petitioner's educational credentials, training certificates and physical 
therapist license show that he possesses the minimum qualifications to perform in his field. Also, the 
evidence regarding his professional memberships does not demonstrate that the organizations have 
any membership requirements above those commonly found in physical therapists actively working 
in the field. Accordingly, none of this evidence shows that the Petitioner has exceptional ability in 
physical therapy. 
The record also includes evidence that the Petitioner co-authored an article on the occurrence of 
I in patients with I I disorders, which was published in the Brazilian Journal 
of Pneumology in 2006. He submitted evidence of more than thirty books, articles, editorials, letters 
and theses which cite to this article, showing that in the approximately twelve years since its 
publication, others in the medical field have referred to it in their own work. However, we note that 
some of these works were authored by the Petitioner's co-authors, and as such are less probative of 
the impact of this paper in the overall field of physical therapy. Also, others criticize the Petitioner's 
study for lacking a control group or involving a small number of study participants. In addition, as 
stated by the Director in his decision, the record does not include evidence showing the significance 
of this level or rate of citation to the paper, or any other indication that this work places the Petitioner 
significantly above others in the field of physical therapy. 
On appeal, the Petitioner submits additional evidence from Google Scholar showing that this paper 
has been cited on forty-eight occasions since its publication, as well as a 2017 paper which reviewed 
the research productivity of doctor of physical therapy faculty at institutions in the southeast United 
States. We first note that where, as here, a Petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept 
evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The Director's request for evidence specifically sought 
further information to demonstrate that he possesses a degree of expertise significantly above that 
ordinarily encountered in the field. We will therefore not consider this new evidence submitted on 
4 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
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appeal. In the alternative, were we to consider the new evidence, we would note while that the 
Petitioner treats the figure of "median citation count" from the 201 7 paper as authoritative, it was 
based upon public data concerning a small group of physical therapy faculty members in the Southeast 
United States. The Petitioner does not adequately explain the relevance of this limited data to citations 
of the Petitioner's work, let alone its value in determining the significance of his work or how it 
elevates his standing within the field. 
Turning to the reference letters submitted by the Petitioner, he asserts on appeal that these show that 
he has made significant contributions to the field of physical therapy and that these have been 
recognized by his peers, and specifically refers to a letter written by of the 
______________ in Brazil. 5 ______ __,writes that the research project 
leading to the Petitioner's sole published paper was done under his supervision, and that the Petitioner 
"was one of the most enthusiastic and gifted students I have ever taught." While he goes on to note 
that the paper has been cited "over 35 times," he does not elaborate on the significance of the research 
itself or the amount of attention it has received in the field of physical therapy . ______ 
then praises many of the Petitioner's personal characteristics and his "nationally important track record 
of achievements" without explaining the national importance of his work or how it constitutes a track 
record of achievements. 
Another letter was written by CEO of _______ He also describes 
the Petitioner's paper has having "significant impact in the field," but does not explain the nature of 
the impact or how its significance has been manifested. In additionJ I describes the 
Petitioner's treatment of a particular patient as an example of "the significance he has bestowed to the 
field," but does not elaborate on how the treatment of this patient affected or influenced other physical 
therapists, or otherwise elevated him above his peers. Further, he writes that the Petitioner stands out 
due to his "vast array of skill sets typically seen in executive medical settings," but he does not specify 
which skill sets possessed by the Petitioner place him above other physical therapists. 
After review of the totality of the record, we agree with the Director's conclusion that the Petitioner 
has not established that he possesses a degree of expertise significantly above that ordinarily 
encountered in the field of physical therapy. He has therefore not shown that he is an individual of 
exceptional ability, or is otherwise eligible for the underlying EB-2 visa classification. 
B. National Interest Waiver 
Because the Petitioner has not established his qualification as an individual of exceptional ability, he 
is not eligible for a national interest waiver of the classification's job offer requirement. However, we 
will provide an analysis of his claims under the first prong of the Dhanasar framework. 
The Dhanasar decision notes that in regard to the first prong, we focus on "the specific endeavor that 
the foreign national proposes to undertake. "6 Here, the Petitioner describes himself as a "physical 
therapy researcher," but at no stage of these proceedings has he presented more than a very brief 
description of the type of research he would conduct as part of his proposed endeavor in the United 
5 All of the reference letters in the record have been reviewed, including those not specifically mentioned in this decision. 
6 Dhanasar, 26 I&N Dec. at 889. 
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States. Without a detailed description of this aspect of his proposed endeavor, we cannot determine 
that it is of substantial merit or national importance. 
The Petitioner's initial submission included a "Professional Plan and Statement," in which he indicated 
that his plan was to "work with a health care facility to provide expert advice and treatment to patients." 
He later wrote in this document that he would "educate other physical therapists/physiotherapists on 
proper techniques and treatments," as well as monitor them and assistants, but there is nothing in the 
record to suggest that these activities would go beyond the typical provision of health care to patients. 
He also presented evidence of a job offer to work as a physical therapist froml I 
company, although the record is absent of evidence showing that this company is in 
the business of providing physical therapy services. More importantly, and as noted by the Director 
in his decision, the Petitioner has not established that the potential prospective impact of his provision 
of physical therapy care is of national importance. Much like the petitioner's proposed endeavor of 
teaching in the Dhanasar decision, the record does not indicate that these activities would impact the 
field of physical therapy on a broader level, beyond the impact it would have on the Petitioner's 
individual patients. 
The Petitioner asserts on appeal that his work as a physical therapist "will broadly impact the nation, 
[ and] produce significant national benefits, due to the ripple effects of his professional activities." 
However, as noted above, the focus in the first prong of the Dhanasar framework is on the specific 
endeavor being proposed. While the Petitioner's activity may add to the positive cumulative effect of 
the work of all physical therapists in the United States, he has not submitted evidence which supports 
his assertion that his specific proposed endeavor, the provision of care to individual patients, will rise 
to the level of national importance. 
He also refers on appeal to the COVID-19 pandemic, noting that a previous Presidential Proclamation 
announcing the suspension of entry by immigrants into the United States did not apply to healthcare 
professionals such as him, and asserting that this was essentially a declaration of the national 
importance of his endeavor. 7 Although he mentions in his statement in response to the Director's RFE 
that he has seen patients who have tested positive for COVID-19, and that his knowledge of 
noninvasive ventilation management "make [ss] me an essential professional to help treat patients with 
COVID-19," at no point has the Petitioner indicated that his specific proposed endeavor was the 
treatment of patients with COVID-19. Further, although his incidental treatment of such patients in 
the course of his activities as a physical therapist may address this national and international crisis at 
some level, it remains that the impact of this work would not reach beyond those individual patients 
to affect the field of physical therapy, the treatment of COVID-19 or national initiatives to address the 
pandemic more broadly. As such, we agree with the Director's conclusion that this aspect of the 
Petitioner's proposed endeavor is not of national importance, and therefore does not meet the first 
prong of the analytical framework. 
In response to the Director's RFE, the Petitioner submitted a second "Personal Plan and Statement," 
which included for the first time his proposal to establish his own company, 
I I He explained that this company would operate wheelchair accessible vans and 
7 Suspension of Entry oflmmigrants Who Present a Risk to the United States Labor Market During the Economic Recove1y 
Following the 2019 Novel Coronavirus Outbreak, Proclamation 10014 of April 22, 2020, 83 FR 23441 (Apr. 27, 2020). 
6 
RVs and would provide homebound patients with physical therapy services. Also submitted was a 
business plan for I I which indicates that the business would initially serve a single county in 
Florida, and then expand to three additional Florida counties and the state of Utah. Although the 
company has yet to be established, the business plan indicates that it would initially employ four 
individuals, including the Petitioner, and would expand to seven individuals in its fifth year of 
operation. While he makes several assertions on appeal regarding the national importance of physical 
therapy services in general, the Petitioner does not suggest that his specific proposed endeavor in 
opening and running this business would be of national importance. We stated in Dhanasar that 
undertakings having a focus on one geographical area of the United States may be considered to be of 
national importance, but here the Petitioner has not shown that I I would have a significant 
potential to employ U.S. workers or would have other substantial positive economic effects. 
For all of the reasons discussed above, the Petitioner has not established that any aspect of his proposed 
endeavor would be of national importance, and thus he has not demonstrated his eligibility under the 
first prong of the Dhanasar framework. Accordingly, he has not established that he is eligible for, or 
otherwise merits, a waiver of the EB-2 classification's job offer requirement, and thus the requirement 
of a labor certification. 
III. CONCLUSION 
The Petitioner has not established that he qualifies as an individual of exceptional ability, or that he is 
otherwise eligible for the underlying EB-2 immigrant visa classification. In addition, he has not shown 
that that he is eligible for, or otherwise merits, a national interest waiver of that classification's 
requirement of a job offer. 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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