dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 6, 2025 In Re: 34456958 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist specialist, 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 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 Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
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. If a doctoral degree is customarily required for the specialty, the non-citizen must possess a 
U.S. doctorate or a foreign equivalent degree. 8 C.F.R. § 204.5(k)(2). 
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. Our precedent decision in Matter ofDhanasar, 26 l&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 Third, Ninth, Eleventh, and D.C. Circuit Courts 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. 
As an initial matter, we must withdraw the Director's determination that the Petitioner is an advanced 
degree professional. The Director concluded the Petitioner meets this requirement because she holds 
the foreign equivalent of a U.S. bachelor's degree in physical therapy and has at least five years of 
progressive post-baccalaureate experience in the specialty. However, according to the "How to 
Become a Physical Therapist" section of the Occupational Outlook Handbook entry for physical 
therapists submitted by the Petitioner, "[p ]hysical therapists entering the occupation need a Doctor of 
Physical Therapy (DPT) degree. All states require physical therapists to be licensed." As noted above, 
the definition of an advanced degree at 8 C.F.R. § 204.5(k)(2) clearly states, in pertinent part, that "[i]f 
a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree." In other words, the regulation does not allow for a combination of 
education and experience if "a doctoral degree is customarily required by the specialty." 
The Petitioner's "Evaluation of Grades and Degree for Continuing Studies in the United States" 
reflects that she holds the equivalent of a bachelor's degree and a graduate certificate. Notably, 
although the evaluator states that the Petitioner was awarded the equivalent of a U.S. bachelor's degree 
in physical therapy, neither the diploma, nor the accompanying translation, use the term "bachelor's 
degree." Rather, her diploma states she was conferred the "title of Licentiate in Physical Therapy." 
Further, the evaluator does not address the DPT requirement for physical therapists, nor sufficiently 
explain their experience evaluating the credentials of individuals in the healthcare field. 
As the Petitioner has not demonstrated that she holds the foreign equivalent of a DPT, she has not 
established that she is a member of the professions holding an advanced degree consistent with the 
regulatory definition at 8 C.F.R. § 204.5(k)(2). Accordingly, we will withdraw the Director's 
determination on this issue. 
Regarding the Petitioner's assertions related to her proposed endeavor's national importance, we adopt 
and affirm the Director's decision on this issue. See Matter ofBurbano, 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). 
The Director denied the petition, finding the Petitioner materially changed her proposed endeavor. 
While the Petitioner first proposed to work as a physical therapist specialist in her initial filing, in 
response to the Director's request for evidence (RFE), the Petitioner submitted a new statement and 
business plan claiming she now intended to start her own company specializing in comprehensive 
home care services. The Director found this new information constituted an impermissible material 
change of the Petitioner's proposed endeavor. In other words, the Director essentially determined that 
since the gulf between the endeavor proposed at the time of filing and the one described in the RFE 
2 
response was so wide, the record contained two separate and independent proposed endeavors. And 
since the Director can conduct a Dhanasar analysis on only one endeavor per petition, they analyzed 
the first one. The Director determined that the evidence did not sufficiently show the Petitioner's 
future work as a physical therapist specialist would have national or global implications, would impact 
a matter that a government entity described as having national importance or is the subject of national 
initiatives, or would have other substantial positive economic effects as claimed. Therefore, the 
Director concluded the Petitioner did not establish the national importance of the endeavor she initially 
proposed. 
On appeal, the Petitioner has elected not to address the Director's grounds for denial and, instead, 
bases her arguments on her new endeavor, which the Director did not analyze.2 In doing so, the 
Petitioner fails to meaningfully argue how the Director erred in analyzing the initial endeavor and its 
evidence and, therefore, has not overcome it. 
We agree with the Director's analysis and conclusions regarding the national importance of the 
proposed endeavor. Because the Petitioner must establish eligibility at the time of filing, her claims 
related to her new home care services company started after the filing of the petition cannot be 
considered. 8 C.F.R. § 103.2(b)(l2); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). And 
for the reasons stated in the Director's decision, we agree that the Petitioner has not sufficiently shown 
that her initial endeavor of working as a physical therapist specialist is nationally important. 
Because the identified bases for denial are dispositive of the Petitioner's appeal, we decline to reach 
and hereby reserve the Petitioner's remaining appellate arguments. See INS v. Bagamasbad, 429 U.S. 
24, 25 (1976) (per curiam) (holding that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision). 
ORDER: The appeal is dismissed. 
2 The Petitioner's brief also references her experience in nursing, the "immediate benefits" that the Petitioner can generate 
to the fashion industry, and "the vital support that her activities produce to the U.S. law business." The record does not 
support these statements. 
3