dismissed EB-2 NIW Case: Radiology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 17, 2024 In Re: 31655660 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a radiologist, seeks classification as a member of the professions holding an advanced 
degree or of exceptional ability. 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. See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. 
Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo'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. 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. 
Whilst 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 USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen is well positioned to advance the 
proposed endeavor, and (3) 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest. 
The Director denied the petition, concluding that whilst the Petitioner was well positioned to advance 
their proposed endeavor, the proposed endeavor was not of national importance such that on balance 
a waiver of the requirement of a job offer and labor certification would be beneficial to the United 
States. We agree with the Director's overall decision that the Petitioner does not qualify for a national 
interest waiver, but we do not agree with and will withdraw the Director's specific finding that the 
Petitioner was well positioned to advance their proposed endeavor. 
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A. Substantial Merit and National Importance 
Whilst the Director found that the Petitioner's proposed endeavor had substantial merit, they also 
concluded that the Petitioner did not demonstrate that their proposed endeavor was of national 
importance because the Petitioner did not demonstrate the broader implications of the proposed 
endeavor or its potential positive economic effects. For the below reasons, we agree. 
In determining national importance under Dhanasar, the relevant question is not the importance of the 
field, industry, or profession in which the individual will work; instead, we focus on "the specific 
endeavor that the foreign national proposes to undertake." See Dhanasar, 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 a 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. What is critical in determining the national importance under Dhanasar is whether the 
proposed endeavor has a potential prospective impact with broader implications which rise to the level 
of national importance. So, it is not what duties or what occupation the noncitizen will fill or perform 
but their actual plan with their occupation and duties that is examined. 
As stated above, the Petitioner's proposed endeavor is to continue their career as a radiologist serving 
a Veterans Administration facility or federally designated healthcare professional shortage areas or 
medically underserved areas or populations by establishing a radiology consultancy and services 
company providing affordable radiological services. 1 The Petitioner roots their eligibility under this 
first prong of the Dhanasar framework citing their previous professional experiences, awards and 
recognitions as described in their personal statement, and curriculum vitae. The Petitioner also 
submitted several letters from various individuals describing the work that the Petitioner previously 
performed. 
On appeal, the Petitioner states that the national importance of their proposed endeavor described in 
their "Business Plan" stems from their provision of medical imaging services in underserved areas at 
affordable prices. The Petitioner contends that national importance is broadly implicated by the need 
of their services by the U.S. public, especially those in underserved areas. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of 
proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition ofburden 
of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). First, a petitioner must satisfy the burden of 
production. As the term suggests, this burden requires a filing party to produce evidence in the form 
1 The Petitioner's response to the Director's request for evidence (RFE) did not contain evidence, documentation, or 
assertion supporting eligibility for a national interest waiver for physicians pursuant to section 203(b )(2)(B)(ii) of the 
Immigration and Nationality Act as amended, 8 U.S.C. § l l 53(b )(2)(B)(ii). 
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of documents, testimony, etc. that adheres to the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. 
The infirmity of the Petitioner's proposed endeavor becomes readily apparent upon an examination of 
the evidence and argument the Petitioner introduced into the record. The Petitioner's evidence and 
argument does not help them carry their burden of production and persuasion because it does not relate 
to the national importance of the Petitioner's proposed endeavor under the first prong of the Dhanasar 
framework. 
The Petitioner's appeal stresses that it is their execution of their proposed endeavor which elevates it 
to a level of national importance. But the Petitioner's argument spotlights a fundamental 
misunderstanding of the first prong of the Dhanasar framework. The first prong of the Dhanasar 
framework focuses on the proposed endeavor; not on the Petitioner's execution of that proposed 
endeavor. The Dhanasar framework is consequently unconcerned with the likelihood of the success 
of the proposed endeavor. The Petitioner's contentions about their successful past performance in the 
endeavor they propose, as well as evidence and information of their achievements and recognition 
would better serve a demonstration of eligibility under the second prong of the Dhanasar framework. 
The letters the Petitioner submitted did not reflect how national importance was implicated by the 
Petitioner's proposed endeavor because the letters focused on the Petitioner's past work. When 
evaluating the national importance of a proposed endeavor under the first prong of Dhanasar, we are 
concerned with its potential prospective or future impact. The Petitioner's demonstration of prior 
work in the field does not have an influence on the proposed endeavor's potential prospective impact 
based on its national importance. 
The updated "Business Plan" is also insufficient to demonstrate the national importance of the 
potential prospective impact of the proposed endeavor. The "Business Plan" described the Petitioner's 
proposed endeavor as a plan to offer "a wide range of medical image scanning and analysis services" 
employing "the latest equipment and expert medical training." The "Business Plan" indicated the 
"target audience" or market for their proposed endeavor is "individual patients, as well as [the] 
physicians who make patient referrals to the" proposed endeavor. The practice of radiology in this 
manner, even when proscribed in the manner the Petitioner advances federally designated underserved 
areas, directly benefits only those individuals availing themselves of the Petitioner's services. This is 
akin to how the benefit of someone's teaching is generally only directly beneficial to the students 
being taught and not wider population. In Dhanasar we discussed how teaching would not impact the 
field of education broadly in a manner which rises to national importance. Dhanasar at 893. By 
extension activities which only benefit a small subset of individuals, like the Petitioner's proposed 
physical therapy endeavor, would not rise to a level of national importance. The Petitioner has not 
provided any material, probative, or relevant evidence of national or global implications to the field 
of radiology or broader implications separate and apart from the benefits that could be realized by the 
patients that may engage the Petitioner's services. 
So, we conclude that the Petitioner has not established that their proposed endeavor is of national 
importance. 
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B. Well Positioned to Advance the Proposed Endeavor 
And we must withdraw the Director's conclusion that the record established that the petitioner was 
well positioned to advance the proposed endeavor under the second prong of the Dhanasar framework. 
In evaluating whether a petitioner is well positioned to advance their proposed endeavor, we review 
the following and any other relevant factors: 
• A petitioner's education, skill, knowledge, and record of success in related or similar efforts; 
• A petitioner's model or plan for future activities related to the proposed endeavor that the 
individual developed, or played a significant role in developing; 
• Any progress towards achieving the proposed endeavor; and 
• The interest or support garnered by the individual from potential customers, users, investor, or 
other relevant entities or persons. 
As stated above, a petitioner's burden of proof comprises both the initial burden of production, as well 
as the ultimate burden of persuasion. Y-B-, 21 I&N Dec. at 1142 n.3. The record contains evidence 
of the Petitioner's education and licensure to practice medicine in their home country, and publication 
of scholarly articles. But simply having education, skills, and/or knowledge in isolation do not place 
a petitioner in a position to advance their proposed endeavor. This is only one factor amongst many 
factors which are evaluated together to determine how well positioned a petitioner is to advance a 
proposed endeavor. It is not clear from the totality of the evidence in the record how an individualized 
consideration of the multifactorial analysis under Dhanasar 's second prong would demonstrate how 
well positioned the Petitioner is to advance their proposed endeavor. For example, the Petitioner 
submitted several letters into the record that speak effusively of the Petitioner's prosecution of job 
duties or other professional services. But the letters do not sufficiently establish how the Petitioner 
prosecution of job duties or other professional services, whilst appreciated by the letter writers, is 
either a similar effort as that of their proposed endeavor or how it constitutes a record of success. Nor 
is it evident with material, relevant, or probative evidence how the Petitioner's participation at 
"congresses" as a speaker and presenter is a related or similar effort to their proposed endeavor to 
serve as a radiologist, a model or plan for their future activities, or indicative of progress towards 
achieving their proposed endeavor inside the United States. For example, it is not clear from the record 
how speaking and presentation opportunities in autoimmune conditions (lupus) and neurology 
(electromyneurography) relate to the field of radiology such that they would support how well 
positioned the Petitioner is to advance their proposed endeavor as a radiologist. The Petitioner asserts 
that they are registered as an "expert" in the "Single Court of I I and in the "3rd Circuit 
Court ofl IBut it is not adequately established in the record what specific field the courts 
have registered the Petitioner's expertise in. Moreover, the Petitioner's and other unrelated third 
parties' personal assets and prior earnings do not persuasively demonstrate interest or support in the 
proposed endeavor because it is not apparent how "believing in the success of [the Petitioner's] 
business" would support the level of investment required to advance the Petitioner's proposed 
endeavor. So, the Petitioner has not demonstrated with material, relevant, and probative evidence that 
they are well-positioned to advance their proposed endeavor. 
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C. Whether on Balance a Waiver is Beneficial 
The third prong requires a 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. On appeal, the 
Petitioner asserts that the national interest in their proposed endeavor is sufficiently urgent to warrant 
a waiver, and that the United States would benefit from their contributions to the field of endeavor. 
As the Petitioner has not established that they meet the first or second prong of the Dhanasar 
framework, they have not shown that they are eligible for and otherwise merit a national interest 
waiver, and we reserve this issue. 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 prongs of the Dhanasar analytical framework, we find that 
they have not established that they are eligible for or otherwise merit a national interest waiver as a 
matter of discretion. 
ORDER: The appeal is dismissed. 
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