dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : SEP . 05, 2023 In Re : 28401959 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist and entrepreneur, seeks employment-based second preference (EB-
2) immigrant classification as a member of the professions holding an advanced degree . See 
Immigration and Nationality Act (the Act) section 203(b)(2) , 8 U.S .C. § 1153(b)(2) . The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification . See section 203(b)(2)(B)(i) of the Act , 8 U.S .C. § 1153(b)(2)(B)(i) . U.S . Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer , and 
thus of a labor certification , when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish that that the Petitioner qualifies for a national interest waiver. 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 of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo 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. Section 203(b )(2)(B)(i) of the Act. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification , they must then establish 
that they merit a discretionary waiver of the job offer requirement "in the national interest." Id. While 
neither the statute nor the pertinent regulations define the term "national interest," Matter ofDhanasa r, 
26 I&N Dec . 884, 889 (AAO 2016) , provides the framework for adjudicating national interest waiver 
petitions. Dhanasar states that USCIS may, as matter of discretion , 1 grant a national interest waiver 
if the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS ' decision to grant or deny a national interest 
waiver to be 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. 2 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. The record supports that conclusion. The remaining issue to be determined on 
appeal is whether the Petitioner has established that a waiver of the requirement of a job offer, and 
thus a labor certification, would be in the national interest. 
A. Substantial Merit and National Importance 
The Petitioner intends to provide physical therapy services in the United States. The Petitioner initially 
included a professional plan and statement in which she provides the following explanation of her 
endeavor: 
My career plan in the United States is to work with a health care facility to provide 
expert advice and treatment to patients. My extensive career, working with patients 
with a wide array of injuries and illnesses will be beneficial to the U.S. health industry, 
which is experiencing a high demand for physical therapists. 
My specific endeavor will potentially impact the U.S. in the following ways: 
• Fill a position as a Physical therapist that is vacant due to high demand for 
physical therapists but lack of qualified physical therapists; 
• Provide patients with a proper diagnosis; 
• Educate other physiotherapists on proper techniques and treatments; and 
• Monitor and manage other therapists, assistants, and others involved in the 
diagnosis and recover process. 
The Director sent a request for evidence (RFE) requesting, in part, that the Petitioner clarify her 
proposed endeavor and submit evidence to demonstrate its substantial merit and national importance. 
In response to the RFE, the Petitioner submitted a business plan describing her intention to develop 
and operate a physical therapy clinic in I I Florida, stating, additionally, that the com any 
"intends to open new units in other states like Georgia and Alabama and cities such as I 7and
I !(Florida) with great potential for success." The Director determined that the Petitioner's 
endeavor has both substantial merit and national importance. The Director's decision states that the 
"endeavor is clearly of national importance to the United States where many business professional[ s ], 
much like herself: are starting new businesses in order to help the U.S. economy get back on its feet 
after the financial halt and strains caused by the COVID-19 pandemic." The decision lists the evidence 
submitted that informed the Director's determination: education documentation, support letters, a 
personal statement, a business plan, and"[ o ]ther material." 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
2 
The first prong , 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 
whether the proposed endeavor has national importance , we consider its potential prospective impact. 
Dhanasar , 26 I&N Dec. at 889. 
While we agree that the Petitioner 's proposed endeavor has substantial merit, we do not agree with 
the Director's determination that the endeavor has national importance. Because we conclude below 
that the Petitioner did not establish her eligibility for a national interest waiver under the second prong 
of the Dhanasar framework , we need not fully address the Petitioner 's eligibility under the fust prong . 
However , we will discuss the issue to inform the Petitioner that this should be addressed in any future 
national interest waiver proceedings . 
In determining national importance , the relevant question is not the importance of the industry or 
profession in which the individual will work; instead, we focus on the "the specific endeavor that the 
foreign national proposes to undertake ." See Dhanasa r, 26 I&N Dec . 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. We also stated that "[a]n endeavor that has significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area, for instance , may well be understood to have national importance." Id. at 890. Further , to 
evaluate whether the Petitioner' s proposed endeavor satisfies the national importance requirement , we 
look to evidence documenting the "potential prospective impact" of her work. 
The Petitioner has not demonstrated that the endeavor she proposes to undertake has significant 
potential to employ U.S . workers or otherwise offers substantial positive economic effects for the 
nation . The Petitioner's business plan describes her intention to develop and operate a physical therapy 
center and to positively impact the U.S . economy by creating jobs in a field for which there is a talent 
shortage. The business plan explains that the Petitioner and a partner will each initially invest 
$300,000 into the business and will reinvest profits to grow the business; the plan includes forecasts 
that anticipate a sixty-two-member staff and revenue totaling $5,576,812.50 by the company's fifth 
year of operation . There is no explanation, however, of the origins of those estimates or any indication 
of how they were calculated. In addition, the record does not include documentation concerning the 
existence of the $600,000 in initial investment funding. Absent probative evidence to show the realistic 
development of the business , it is not evident that the compan y will generate revenue to create jobs , 
to expand, or to otherwise notably impact the economies of the cities in which it intends to operate . 3 
Without sufficient information or evidence regarding any projected U.S. economjc impact or job creation 
attributable to her future work, the record does not show that potential benefits to the U.S. regional or 
national economy resulting from the Petitioner's company would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. 
Further, while the record includes several letters from previous employers, colleagues, and professors 
that speak to the Petitioner's experience and skillset , neither these nor an expert opinion letter provide 
3 The Petitioner must support assertions with relevant, probativ e, and credible evidence. See Matter ofChawathe, 25 I&N 
Dec. 369 at 376. 
3 
insight as to how the Petitioner intends to impact the field or the economy more broadly as an 
individual working as a manager of a physical therapy center. And although the Petitioner cites articles 
and an industry report in the record that discuss the duties of physical therapists and the "steep shortage 
in the U.S. of professionals with her profile in the field," she does not explain how her work will 
address a national talent shortage or affect the fields of physical therapy or healthcare management. 
The evidence does not show how her work will have a positive impact on entities outside of that of 
her immediate employer or patients. In addition, her argument on appeal that labor certification 
requirements should be waived due to a labor shortage is not persuasive , as the purpose of the labor 
certification process is to identify jobs where there are no qualified, willing, and available U.S. 
workers. In Dhanasar we determined that the petitioner 's teaching activities did not rise to the level 
of having national importance because they would not impact his field more broadly. Id. at 893. Here, 
we conclude the record does not show that the Petitioner 's proposed endeavor stands to sufficiently 
extend beyond her company and its clientele to impact the physical therapy field or the U.S. economy 
more broadly at a level commensurate with national importance . 
Finally, we note that several inconsistencies in the record make it difficult to understand the 
Petitioner's specific endeavor. While the business plan submitted in response to the RFE focuses on 
her entrepreneurial endeavor to create and operate a physical therapy facility, her initial cover letter 
describes the endeavor as follows : 
[The Petitioner] intends to advance her career as a Physical Therapist, to advise on 
clinical patient care in Physiotherapy, Muscle Therapy, Orthopedic Therapy, 
Biomechanical Physiotherapy , and Sports Physiotherapy , improving Healthcare in the 
United States, as well as to implement and advise in the management and marketing of 
commercial activities of U.S. Physiotherapy Device manufacturers and Physiotherapy 
institutions, operating or planning to operate in Brazil, as well as implementing her 
skills to advance the United States Healthcare field. 
The Global Physiotherapy Devices market is anticipated to experience a prominent 
surge in demand over the coming years. Hence, the market players want to optimize 
the lucrativeness of their operations within the market by resorting to a range of 
business strategies. 
The Petitioner's cover letter submitted in response to the RFE includes the following description of 
her endeavor: 
[The] proposed endeavor will substantially enhance the U.S. business and physical 
therapy field, as well as the national economy. Based on her experiences, she will be 
able to utilize her skills and knowledge to work in Physical Therapy and make 
contributions of major significance to the industry here in the U.S. as she has proven to 
be an achiever with exceptional ability and skill in her field in Brazil. In fact, her 
intimate knowledge of the Brazilian Healthcare arena will be vital to the success of 
existing and future physical therapy related exporting companies within the United 
States. 
4 
Furthermore, in addition to helping the physical therapy industry in the U.S., [the 
Petitioner] can also help U.S. businesses develop cross-border projects abroad, 
particularly in Latin America. She can provide significant benefits facilitating business 
operations of U.S. Health related corporations and U.S. investors interested in making 
investments and developing productive relationships in the lucrative Physical Therapy 
field in the Brazilian and Latin American markets. 
[The Petitioner's] career plan in the United States is to continue working in Physical 
Therapy with multi-national companies, providing indispensable guidance regarding 
national and cross-border contracts involving the development of different Healthcare 
ventures in the U.S. and Brazil. Her leadership and management skills will be an asset, 
as she will be able to maximize efficiency and productivity for companies in these 
sectors. Her strong interest for new products and methodologies will surely serve the 
national interest of the United States. 
In contrast to the business plan, the cover letters in the record indicate that the Petitioner's endeavor 
will be advisory in nature; they imply that the Petitioner will be involved with other businesses in the 
healthcare industry or with investors in the industry. An additional explanation or other details 
concerning these elements of the Petitioner's endeavor are not included in the business plan or in other 
documentation in the record. As it is not clear what specific endeavor the Petitioner intends to pursue 
in the United States, we cannot conclude whether or not she has proposed an endeavor of national 
importance. Therefore, based on the record, the Petitioner has not established the national importance 
of her proposed endeavor. We will withdraw the Director's finding on this issue. In any future 
national interest waiver proceedings, the Petitioner must establish that she qualifies under the first 
prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether 
they are well positioned to advance the proposed endeavor, we consider factors including, but not 
limited to: their 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. Id. at 890. 
The Director determined that the Petitioner did not establish that she is well positioned to advance her 
proposed endeavor. The Director's decision states, in part, that the evidence does not demonstrate that 
she has achieved significant accomplishments or gained recognition in the field of physical therapy. 
The Director also cites the fact that the record does not include documentation showing interest in her 
endeavor from investors or other relevant parties beyond that of an individual whose undated letter of 
interest to invest is "brief and more of a casual letter without any commitment or contracts." The 
Director stated that there is no evidence in the record of the Petitioner's progress towards advancing 
her endeavor. 
5 
On appeal, the Petitioner asserts that, rather than applying the governing standard of review, 
preponderance of the evidence, 4 the Director "imposed novel substantive and evidentiary requirements 
beyond those set forth in regulations." Although the Petitioner asserts 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 denied her petition applying a standard of proof 
other than that of preponderance of the evidence. The Petitioner also asserts that USCIS "did not give 
due regard" to that evidence. Additionally, the Petitioner's brief provides the following: 
[The Petitioner's] technical expertise and experience in a wide range of highly 
specialized physical therapy practices make her highly qualified to keep advancing her 
proposed endeavor in the United States. She has provided treatments ... that have 
significantly impacted patients' quality of life. Her past work has enabled her to 
develop an expertise in physical therapy techniques, industry trends, and business 
management success, which will have a significant and beneficial impact on the U.S. 
population's health. 
The U.S. Business Plan and Resume provide evidence of [the Petitioner's] continued 
plans and progress to drive her proposed endeavor forward in the nation. This 
document, along with other submitted evidence, shows how she possesses the 
qualifications, support, and commitment to carry out her proposed endeavor within the 
nation.... Statements from experts in the field attest to her exceptional abilities as a 
Physical Therapist/Entrepreneur and her track record of success in related efforts. 
Her unique knowledge in physiotherapy enables her to treat patients with chronic 
conditions, illnesses, diseases, and/or injuries. She implements advanced protocols to 
alleviate patients' pain conditions, and her treatments have shown to improve patients' 
health, wellness, and movement, while also helping them manage their pain in natural, 
long-term capacities. 
Letters of support from the Petitioner's current and former employers, colleagues, clients, and 
professors convey her as highly competent in the performance of her work. However, the letters do 
not identify "unique knowledge in physiotherapy" or specify an area of "expertise in physical therapy 
techniques" that the Petitioner asserts qualify her as well positioned to advance an endeavor of national 
importance. We note that the record contains a single letter from a purported expert in the field that 
discusses the field of physical therapy generally and, in describing the Petitioner's experience and 
abilities, reflects only the Petitioner's own description of her qualifications. Although the remaining 
letters provide evidence to demonstrate that the Petitioner was a valuable asset to her employers, 
colleagues, and clients-and may prove to be so in a healthcare setting in the future-they do not 
clarify how the Petitioner's qualifications as a physical therapist show that she is well positioned to 
advance an endeavor of national importance. The Petitioner has not provided evidence to demonstrate 
a record of success such as published articles or media reports about her achievements or current work, 
or evidence that her work has influenced her field of endeavor. The record does not include evidence 
to demonstrate that the Petitioner has made progress in advancing her business, such as documentation 
4 See INS v. Cardoza-Foncesca. 480 U.S. 421,431 (1987) (discussing "more likely than not" as a greater than 50% chance 
of an occurrence taking place). 
6 
related to establishing a location for the business or acquiring any necessary material or equipment to 
operate the business, nor does the record include evidence related to any individuals that the Petitioner 
anticipates hiring for the positions described in her business plan. The record also does not contain 
probative evidence to support the Petitioner's statements that she has a level of expertise or access to 
specific resources-such as investment funding of $600,000-that would serve to advance her 
endeavor. The Petitioner must support assertions with relevant, probative, and credible evidence. See 
Matter ofChawathe, 25 I&N Dec. 369 at 376. 
Further, as stated previously, the Petitioner's description of her endeavor is ambiguous and 
inconsistent. The various descriptions of her endeavor include the following: 1) overseeing healthcare 
clinics with dozens of employees, 2) working in the field of healthcare device exports, 3) advising 
businesses and investors in the healthcare field. The record includes documentation of the Petitioner's 
education, training certificates, and previous employment as a physical therapist; however, the 
Petitioner has not provided evidence of qualifications beyond those expected of an individual working 
in a physical therapy occupation. We cannot make a determination as to whether the Petitioner is well 
positioned to potentially achieve a specific endeavor. The Petitioner has not established that she is 
well positioned to achieve a proposed endeavor. 
The record does not establish the Petitioner is well positioned to advance the proposed endeavor as 
required by the second prong of the Dhanasar precedent decision. Therefore, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Because 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 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). 
III. CONCLUSION 
The Petitioner has not met the requisite first and second prongs of the Dhanasar analytical framework. 
We conclude that the Petitioner has not established that she is eligible for or otherwise merits a national 
interest waiver. The petition will remain denied. 
ORDER: The appeal is dismissed. 
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