dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 07, 2023 In Re: 28804830 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, aphysical therapist and entrepreneur, 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). 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. The Director concluded that the record 
did not demonstrate the Petitioner merits a discretionary waiver of the job offer requirement in the 
national interest. 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter a/Chri sta 's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 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. Section 203(b)(2)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of abachelor's degree.1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or aforeign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for 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 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion2, grant a national interest waiver if the petitioner demonstrates that: 
• 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. 
II. ANALYSIS 
The Petitioner proposes to establish a physical therapy and pilates clinic business in the United States 
having previously worked as aphysiotherapist, physical therapist, and pilates instructor in Brazil. The 
Director determined that the Petitioner established eligibility for the underlying EB-2 immigrant as a 
member of the professions holding an advanced degree.3 
However, the Director determined that the Petitioner did not establish that a waiver of the requirement 
of a job offer, and thus a labor certification, would be in the national interest. The Director found that 
while the Petitioner demonstrated the proposed endeavor has substantial merit, he did not establish 
that the proposed endeavor is of national importance, as required by the first prong of the Dhanasar 
framework. The Director further found that the Petitioner did not establish he is well positioned to 
advance the proposed endeavor under the second prong of Dhanasar, or that on balance, waiving the 
job offer requirement would benefit the United States under the third prong of Dhanasar. Upon de 
novo review, we agree with the Director's determination that the Petitioner did not demonstrate that a 
waiver of the labor certification would be in the national interest.4 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to unde1iake. The endeavor's merit may 
be demonstrated in arange of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining national importance, the relevant question is not the importance 
of the field, industry, or profession in which the individual will work; instead, we focus on the "the 
specific endeavor that the foreign national proposes to undertake." Matter of Dhanasar, 26 l&N Dec. 
at 889. 
The Petitioner proposes to establish a physical therapy and pilates clinic business for which he would 
be its chief executive officer, technical director, and head physical therapist. The business plan 
indicates that the Petitioner and another individual would own the business with its main office in 
I INew Jersey and future franchised clinics in other States, "especially in underserved areas 
and underdeveloped communities, contributing to the development of these regions." The Petitioner's 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 To demonstrate he is an advanced degree professional, the Petitioner submitted his diploma indicating he earned the title 
of bachelor in physiotherapy from I lin Brazil on July 21, 2010; the corresponding 
academic transcripts; an academic evaluation; and letters from his previous employers. The record demonstrates that he 
holds the foreign equivalent of a U.S. bachelor's degree in physiotherapy and at least five years of progressive experience 
in his specialty. See 8 C.F.R. § 204.5(k)(3). 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
statement indicates the business would focus on "rehabilitation for acute and chronic cases throughout 
the [United States], serving individuals and companies with specific needs. The clinic will also focus 
on post-COVID-19 [sic] care, an important public healthcare issue that has been mapped by the US 
Centers for Diseases Control and Prevention." The business plan indicates the clinic would serve 
individuals of all ages, but "will focus on the elderly, serving this large portion of the population that 
needs [sic] specific services." We agree with the Director that the Petitioner's endeavor has substantial 
merit. 
Even though the Petitioner's proposed endeavor has substantial merit, the Director found that the 
Petitioner did not establish that his "proposed endeavor has implications at a level sufficient to 
establish the national importance of the endeavor." Therefore, the Director found that the Petitioner 
did not establish his burden in meeting the national importance element of the first prong of the 
Dhanasar framework. 
The Petitioner contends on appeal that the Director did not apply the proper standard of proof, instead 
imposing a stricter standard, and erred by not giving "due regard" to the evidence submitted, 
specifically the Petitioner's resume outlining his experience; his business plan describing his 
professional accomplishments and his proposed business' potential benefits; letters of 
recommendation attesting to his work in the field; and industry reports and articles showing the 
national importance of the proposed endeavor and the shortage of professionals in the field. Upon de 
novo review, we find the Petitioner did not demonstrate that his proposed endeavor satisfies the 
national importance element of Dhanasar's first prong, as discussed below. 
The standard of proof in this proceeding is a preponderance of evidence, meaning that a petitioner 
must show that what is claimed is "more likely than not" or "probably" true. Matter of Chawathe, 25 
l&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id.; Matter of E-M-, 20 l&N Dec. 77, 79-80 (Comm'r 1989). Here, 
the Director properly analyzed the Petitioner's documentation and weighed the evidence to evaluate 
the Petitioner's eligibility by a preponderance of evidence. 
On appeal, the Petitioner argues that his proposed endeavor has national importance, particularly 
because it will "generate substantial ripple effects upon key healthcare activities on behalf of the 
United States" and would be "a vital aspect of U.S. physical therapy operations and productivity, [sic] 
which contributes to a revenue-enhanced business ecosystem, and an enriched, productivity-centered 
economy." (emphasis omitted). The Petitioner stresses his more than 12 years "of progressive 
experience and acumen in the healthcare field" and his educational credentials to argue that his "work 
offers broad implications to the United States' physical therapy industry, specifically through his 
endeavors within key commercial segments." (emphasis omitted). The Petitioner argues his proposed 
endeavor will benefit the United States "by creating jobs and economic stability." He relies on his 
background to emphasize that he "has brought numerous advantages to the organizations that he has 
served ..." by stimulating "his served companies' economic capacities" and prioritizing "customer 
satisfaction by ensuring all clients are aligned with their actual needs, furthering customer loyalty." 
The Petitioner argues the United States "would benefit from investing in well-versed physical therapy 
professionals such as [the Petitioner], who are knowledgeable regarding potentially profitable markets 
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for U.S. environmentally friendly organizations in regions that are economically and politically 
strategic, yet extremely complex." (emphasis omitted). He contends his "proposed endeavor will 
have multiple positive effects on the U.S. marketplace, thus enhancing business operations on behalf 
of the nation, and contributing to a streamlined economic landscape." The Petitioner asserts his 
"proposed endeavor is clearly of national importance, when considering how much a professional 
with his caliber can contribute to the national interests, and to the U.S. economy, regardless of a labor 
certification." (emphasis in original). 
However, the Petitioner's reliance on his academic credentials, professional experience, and 
achievements to establish the national importance of his proposed endeavor is misplaced. His 
academic credentials, professional experience, and achievements relate to the second prong of the 
Dhanasar framework, which "shifts the focus from the proposed endeavor to the foreign national." 
Matter of Dhanasar, 26 l&N Dec. at 890. The issue here is whether the specific endeavor that the 
Petitioner proposes to undertake has national importance under Dhanasar 's first prong. To evaluate 
whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to 
evidence documenting the "potential prospective impact" of his work. See id. at 889. 
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. The record 
does not demonstrate that the Petitioner's proposed endeavor will substantially benefit the fields of 
physical therapy and pilates, as contemplated by Dhanasar: "[a]n undertaking may have national 
importance for example, because it has national or even global implications within a particular field, 
such as those resulting from certain improved manufacturing processes or medical advances." Id. The 
evidence does not suggest that the Petitioner's business would impact the physical therapy and pilates 
fields more broadly. 
With the petition, the Petitioner submitted his statement and a business plan contending his proposed 
endeavor has national importance based on his business mitigating the shortage of healthcare 
professionals in the United States and its potential economic benefits. The Petitioner's statement 
explains that individuals in the United States have been managing pain with opioids which masks pain 
instead of treating its cause. By establishing a business focused on physical therapy for pain 
management and treatment, the Petitioner states that his work would have broader implications in the 
healthcare field by helping "mitigate the shortage of healthcare professionals" and supporting "the 
high-growth U.S. healthcare sector." 
While we recognize that a shortage of physical therapists and healthcare professionals demonstrates 
substantial merit of a proposed endeavor, it does not render a proposed endeavor nationally important 
under Dhanasar's framework, as it does not in itself establish the proposed endeavor's impact in the 
fields. The U.S. Department of Labor through the labor certification process directly addresses such 
shortages of qualified workers. The issue here is whether the Petitioner has established how his 
proposed endeavor would affect national physical therapy and healthcare employment levels or the 
U.S. economy more broadly consistent with national importance. However, the record does not 
demonstrate how the Petitioner's proposed endeavor will address a shortage of qualified physical 
therapy or healthcare professionals. 
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The Petitioner further claims that his proposed endeavor would have economic benefits to the United 
States by creating jobs for U.S. workers in underserved areas, increasing revenue to the U.S. and local 
economies, and generating taxes for the United States and local communities. The business plan 
briefly states that it proposes to establish the business in underutilized business zones of New Jersey, 
claiming this will generate jobs for U.S. workers in these underutilized areas and will help economic 
growth in the regions. However, the Petitioner has not provided corroborating evidence to support his 
claims that his business' activities stand to provide substantial economic benefits to the United States 
and to underserved areas of New Jersey. 
The business plan projects that in five years the business will hire 63 employees and will generate 
taxes of over a million dollars. However, the record does not sufficiently detail the basis for its 
financial and staffing projections, or adequately explain how these projections will be realized. The 
Petitioner's claims that his physical therapy and pilates clinic business will benefit the U.S. and local 
economies has not been established through independent and objective evidence. The Petitioner's 
statements are not sufficient to demonstrate his endeavor has the potential to provide economic 
benefits to the United States or local communities. The Petitioner must support his assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. at 376. Even if we 
were to assume everything the Petitioner claims will happen, the record lacks evidence showing that 
creating 63 jobs and generating taxes of over a million dollars over a five-year period rises to the level 
of national importance. 
The Petitioner's statement and business plan mainly describe his academic credentials and 
professional experience; the ownership of the business and its initial source of capital; primary 
activities and services of the physical therapy industry; targeted market of individuals and businesses; 
importance of utilizing technology; importance of physical therapy field to the U.S. economy and 
healthcare; the aging population in thel larea of New Jersey; services offered; an analysis of 
the expected growth of the physical therapy industry; the markets and competition of the physical 
therapy field; and the business' projected marketing, staffing, franchise expansion, and finances. 
However, it does not sufficiently document the potential prospective impact, including the asserted 
economic benefits to New Jersey or the United States. Also, without sufficient documentary evidence 
that his proposed job duties as the chief executive officer, technical director, and head physical 
therapist of his physical therapy and pilates clinic business would impact the physical therapy and 
pilates industries more broadly, rather than benefiting his business and his proposed clients, the 
Petitioner has not demonstrated by a preponderance of the evidence that his proposed endeavor is of 
national importance. 
The Petitioner further claims on appeal that the national importance of his proposed endeavor is 
evidenced in industry reports and articles. The reports and articles relate to the physical therapy job 
outlook; student loan financing; physical therapy industry and patient access; importance of physical 
therapy; issues in the physical therapy field; musculoskeletal care in the United States; benefits of 
technology use in healthcare; occupational therapy field; and the economic benefits of immigrants and 
entrepreneurship. We recognize the importance of the physical therapy industry and related careers, 
and the significant contributions from immigrants who have become successful entrepreneurs; 
however, merely working in physical therapy field or starting a physical therapy and pilates clinic 
business is insufficient to establish the national importance of the proposed endeavor. Instead, we 
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focus on the "the specific endeavor that the foreign national proposes to undertake." See Matter of 
Dhanasar, 26 l&N Dec. at 889. 
In Dhanasar, we 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. The industry reports and articles submitted do not discuss any projected U.S. economic impact, 
job creation, or benefits to the physical therapy and pilates fields specifically attributable to the 
Petitioner's proposed endeavor. 
To further support the national importance of his endeavor, the Petitioner submitted an opinion from
I !professor for the nursing department atl lin New York. 
The opinion, however, focuses on the Petitioner's work being "in an area of substantial merit and 
national importance." It describes how the United States will continue to ahave a major shortage of 
physical therapists over the next five years based on its aging population with chronic illnesses, an 
increasing amount of people suffering back, knee, and other physical injuries needing physical 
therapy; and the importance of physical therapy to the healthcare field. The opinion focuses on the 
need for physical therapists and how the Petitioner's experience makes him well positioned to fill a 
physical therapy specialist job, instead of the Petitioner's specific endeavor having a prospective 
impact in the field of physical therapy. The submission of letters from experts supporting the petition 
is not presumptive evidence of eligibility. Matter of Caron Int 'I , 19 l&N Dec. 791, 795 (Comm'r. 
1988); see also Matter of D-R, 25 l&N Dec. 445, 460 n.13 (BIA 2011) (discussing the varying weight 
that may be given expert testimony based on relevance, reliability, and the overall probative value). 
Stating that the Petitioner's work would support an important industry with a shortage of qualified 
professionals is not sufficient to meet the "national importance" requirement under the Dhanasar 
framework. 
The Petitioner does not demonstrate that his proposed endeavor extends beyond his business and his 
future clients to impact the field or any other industries or the U.S. economy more broadly at a level 
commensurate with national importance. Beyond general assertions, he has not demonstrated that the 
work he proposes to undertake as an owner, chief executive officer, technical director, and head 
physical therapist of his proposed physical therapy and pilates clinic business offers original 
innovations that contribute to advancements in his industry or otherwise has broader implications for 
his field. The economic and healthcare benefits that the Petitioner claims depend on numerous factors, 
and the Petitioner did not offer a sufficiently direct evidentiary tie between his proposed business' 
physical therapy and pilates work and the claimed economic and healthcare results. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, he 
has not demonstrated eligibility for a national interest waiver. Since the identified basis for denial is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's eligibility 
and appellate arguments under the second and third 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 
6 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 {BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that the Petitioner has not established eligibility for a national interest waiver as amatter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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