dismissed EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 13, 2023 In Re: 28457747 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical therapist, seeks 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 although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, she had not 
established 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. 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 Christo 's, Inc., 26 l&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. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 l&N Dec. 884, 889 
(AAO 2016) provides that USCIS may, as matter of discretion, 1 grant a national interest waiver if the 
petitioner shows: 
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. 
II. ANALYSIS 
The Director concluded that the Petitioner qualifies as a member of the professions holding an 
advanced degree. Accordingly, 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. 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. 
Initially, the Petitioner claimed that she intended to work as a physical therapist in a health care facility 
in the United States, in addition to possibly working "to teach new Physical Therapists." She 
submitted a professional plan describing her proposed endeavor as follows: 
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 a high demand for 
physical therapists but lack of qualified physical therapists; 
• Provide patients with a proper diagnosis; educate other physical therapists on 
proper techniques and treatments; and 
• Monitor and manage other therapists, assistance, and others involved in the 
diagnosis and recovery process. 
Regarding the potential impact of her endeavor, she claimed that her proposed endeavor will positively 
impact the United States because it will: 
• Optimiz[e] the lives of patients that suffer from illnesses and injuries; 
• Reduce the amount of time patients spend in the hospital; and 
• Increase the quality of life of patients dealing with different illnesses and 
injuries through personalized treatment, allowing them to participate in the 
community. 
• Improve comfort and health of patients; 
• Minimize use and reliance of assistance devices; and 
• Increase overall morale immobility of patients through treatment. 
The Petitioner also supported the record with an opinion letter, industry articles and reports, and letters 
of support. 
2 
In a request for evidence (RFE), the Director informed the Petitioner that she had not submitted 
sufficient evidence to demonstrate that her proposed endeavor had substantial merit or national 
importance. The Director noted the evidence submitted but observed that the record as constituted 
was insufficient to demonstrate that her proposed endeavor would have broader implications in terms 
of significant potential to employ U.S. workers or have other substantial positive economic effects. 
Thus, the Director requested additional evidence that may establish the specific proposed endeavor 
has substantial merit and national importance, as required. 
In response to the Director's RFE, the Petitioner submitted a definitive statement indicating that she 
intended to develop her own cardiopulmonary rehabilitation services company,! I 
Specifically, she stated her company "will provide physiotherapy services throughout the US, meeting 
its high demand, the opening of my at-home cardiorespiratory physical therapy rehabilitation services 
company services the national interest of the United States." 
In support of this assertion, she submitted a copy of the company's business plan, indicating that she 
will serve as the company's CEO and that it anticipates employing 10 individuals and earning a total 
revenue of approximately $1.6 million by its fifth year of operations. The Petitioner also submitted 
additional letters of recommendation and industry articles and reports in support of her eligibility. 
Although she initially stated her intent to work as a physical therapist for a U.S. health care facility 
and possibly teach new physical therapists, her definitive statement made no further mention of these 
endeavors. 
In denying the petition, the Director determined that the Petitioner provided insufficient descriptions 
and documentary evidence to identify her proposed endeavor with specificity, and therefore had not 
established the proposed endeavor's substantial merit and national importance. The Director noted 
that the record contained insufficient evidence to demonstrate that the Petitioner's work would impact 
the regional or national population at a level consistent with national importance, and further noted 
that the Petitioner did not demonstrate that the benefits of her proposed U.S. employment would reach 
beyond her patients to affect her field or the United States more broadly. The Director further 
concluded that the record did not satisfy the second and third Dhanasar prongs, as required. See 
Dhanasar, 26 I&N Dec. at 888-91. 
On appeal, the Petitioner asserts that she has established, by a preponderance of the evidence, the 
substantial merit and national importance of her work, and that the Director's decision was in error 
because it "applied a stricter standard" of proof. The Petitioner further asserts that the Director erred 
by not considering the totality of the evidence provided both initially and in response to the RFE, and 
emphasizes that her nineteen years of experience in the field coupled with the potential positive 
impacts of her proposed company demonstrate her eligibility for a national interest waiver. 
With respect to the standard of proof in this matter, a petitioner must establish that they meet each 
eligibility requirement of the benefit sought by a preponderance of the evidence. Matter ofChawathe, 
25 I& N Dec. at 375-76. In other words, a petitioner must show that what they claim is "more likely 
than not" or "probably" true. To determine whether a petitioner has met their burden under the 
preponderance standard, USCIS considers not only the quantity, but also the quality (including 
relevance, probative value, and credibility) of the evidence. Id. at 376; Matter ofE-M-, 20 I&N Dec. 
77, 79-80 (Comm'r 1989). 
3 
Preliminarily, we note that the Petitioner's proposed endeavor is material to whether the endeavor has 
substantial merit and is of national importance. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg'l Cornrn'r 1978); see also Dhanasar, 26 I&N Dec. at 889-90. USCIS regulations affirmatively 
require a petitioner to establish eligibility for the benefit sought at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A petitioner may not make material changes to a petition that has already been 
filed to make a deficient petition conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 
169, 175 (Cornrn'r 1988); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
As noted above, the Petitioner introduced a new proposed endeavor in response to the RFE rather than 
establishing the substantial merit and national importance ofthe proposed endeavor described in the initial 
petition. The Petitioner's new plan in the RFE reply to develop her own rehabilitation services company 
and serve as its CEO describe a new set of facts regarding the proposed endeavor and were presented 
after the filing date, and thus cannot retroactively establish eligibility. Accordingly, we find that the 
Petitioner made an impermissible material change to her proposed endeavor. If significant material 
changes are made to the initial request for approval, a petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. See 8 C.F.R. § 103.2(b)(l). 
Therefore, on appeal, we will consider if the record demonstrates that her initial proposed endeavor -
working as a physical therapist and possibly providing instruction to physical therapists - has substantial 
merit and national importance. We conclude it does not. 
As initially stated, the Petitioner intends to work as a physical therapist in the United States and 
possibly teach/train other physical therapists. The Petitioner did not provide a timeline for when she 
would occupy these roles and it is not apparent whether securing a position in either of these areas is 
the proposed endeavor or whether the proposed endeavor involves the Petitioner performing these 
roles either simultaneously or consecutively. Overall, we have insufficient information concerning 
the proposed endeavor with which to determine whether it has substantial merit because the 
Petitioner's proposed endeavor has not been clearly defined. We therefore agree with the Director's 
determination that the Petitioner did not submit persuasive evidence to support a finding of substantial 
merit. The Petitioner bears the burden to both affirmatively establish eligibility under the Dhanasar 
framework, of which substantial merit is one piece, and establish her eligibility by a preponderance of the 
evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the [noncitizen] proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. 
Dhanasar provided examples of endeavors that may have national importance, as required by the first 
prong, having "national or even global implications within a particular field, such as those resulting 
from certain improved manufacturing processes or medical advances" and endeavors that have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 889-90. 
We agree with the Director that the Petitioner has not provided sufficient documentation or 
explanation concerning how her proposed endeavor has national importance. The purpose of the 
national interest waiver is not to afford the Petitioner an opportunity to engage in a job search or further 
her own career while only adding ancillary benefits to the nation. Although she has many ideas, it 
remains unclear as to what specifically her proposed endeavor involves aside from securing a job as a 
4 
physical therapist and/or an instructor/trainer. Moreover, we do not know if she intends to perform 
both the functions she initially described or whether she will perform in only one of the identified 
positions. In Dhanasar, we held that a petitioner must identify "the specific endeavor that the foreign 
national proposes to undertake." See id. at 889. While it may include one or more of the positions 
outlined above, we conclude that the Petitioner has not provided a specific or consistent proposed 
endeavor activity such that we can determine its national importance. 
We note the Petitioner's submission of generalized publications, reports and articles regarding the 
field of physical therapy, anticipated industry growth and treatment trends, and the shortage of 
physical therapists in the industry. The relevant question is not the importance of the field or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." 2 See id. Furthermore, even if the Petitioner was able to 
establish a shortage of physical therapists in the United States, the U.S. Department of Labor addresses 
shortages of qualified workers through the labor certification process. Accordingly, a shortage alone 
would not demonstrate that waiving the requirement of a labor certification would benefit the United 
States. Moreover, none of the documents submitted establish that the benefits of working as a physical 
therapist or an instructor in a healthcare facility, the proposed endeavor, would extend beyond her 
patients, employers, and students in a manner that could be considered of national importance. 
While the physical therapy profession may have national importance, the Petitioner has not 
demonstrated that her specific proposal could lead to advances in the field. She provided a letter from 
the mother of a Brazilian patient, who states that the Petitioner began treating her son, a carrier of 
cystic fibrosis, shortly after his birth in 2010 and continued to treat him through home visits thereafter. 
Although she praises the Petitioner's competence and attentive manner, her letter does not indicate 
that the Petitioner introduced new procedures or employed novel therapy methods when treating her 
son. This letter, therefore, while a testament to the Petitioner's abilities and manner, does not 
demonstrate that her proposed U.S. endeavor has significant potential to advance the physical therapy 
field by introducing new procedures or methods of treatment. 
The record contains an expert opinion letter from a professor of anatomy at thel !Institute in 
New York who concludes that the Petitioner's proposed work has national importance. But the 
professor does not base his conclusion on the national importance of the Petitioner's specific endeavor. 
Although he recites the Petitioner's career history and accomplishments, and praises her "intimate 
knowledge of the Brazilian healthcare sector," his findings stem from the significance of the physical 
therapy profession in general - particularly in relation to the shortage of U.S. physical therapists. The 
letter therefore does not establish the national importance of the Petitioner's specific proposed U.S. 
work. See Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (holding that the 
immigration service may reject or afford less evidentiary weight to an expert opinion that conflicts 
with other information or "is in any way questionable"). 
The Petitioner also submitted numerous support letters from physicians and physical therapists who 
worked with her in Brazil. None of the authors, however, discuss the Petitioner's proposed endeavor 
as initially stated. Instead, her former colleagues primarily focus on the Petitioner's past work 
2 The issue here is not the value of physical therapy as an effective means of treatment and pain management, but rather 
whether the Petitioner's specific proposed endeavor as a physical therapist rises to the level of national importance. 
5 
experience and accomplishments. Although the record contains statements regarding the Petitioner's 
career in the physical therapy field, and although the letter writers praise the Petitioner's qualifications 
and commend her work, we have insufficient information concerning the Petitioner's proposed 
endeavor with which to make a determination concerning its national importance. Again, 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." Dhanasar, 26 I&N Dec. at 889. 
The Petitioner's proposal to fill a vacant physical therapist position at an existing healthcare facility, 
and possibly teach other physical therapists, appears to benefit the Petitioner's potential employer(s), 
the patients to whom she may provide care, and other physical therapists who may benefit from her 
instruction. However, the record does not establish how treating an unspecified number of individual 
patients as a physical therapist working at a single healthcare facility may have "national or even 
global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances" or broader implications, such as "significant potential 
to employ U.S. workers or ... other substantial positive economic effects, particularly in an 
economically depressed area." Id. at 889-90. Moreover, the record does not establish how the 
proposed endeavor of educating other physical therapy workers at the healthcare facility that may 
employ the Petitioner may have national or even global implications within a particular field, broader 
implications, or other substantial positive economic effects. See id. Because the record does not 
establish how the Petitioner's endeavor may have national or even global implications within a 
particular field, broader implications, or other substantial positive economic effects, it does not 
establish the proposed endeavor has national importance. See id. 
Finally, the Petitioner's reliance throughout the record on her academic and prior employment history 
is misplaced. Although an individual's academic and prior employment history are material the 
second Dhanasar prong - whether an individual is well positioned to advance a proposed endeavor -
they are immaterial to the first Dhanasar prong, which pertains to whether the prospective endeavor 
has both substantial merit and national importance. See id. at 888-91. 
Because the Petitioner has not shown that she intends to pursue her initial endeavor and because she 
has not provided sufficient information and documentation regarding her proposed endeavor, she did 
not demonstrate that the endeavor has substantial merit and national importance, and is therefore not 
eligible for a national interest waiver. We reserve our opinion regarding whether the record satisfies 
the second or third Dhanasar prong. 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). 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
6 
ORDER: The appeal is dismissed. 
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