dismissed EB-2 NIW Case: Surgery

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 18, 2023 In Re: 23782181 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a surgeon, seeks classification as a member of the professions holding an advanced 
degree. Immigration and Nationality Act (the Act) section 203(b )(2), 8 U .S.C. § l 153(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. 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 a waiver of the job offer requirement is 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 of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, 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 statute nor the pertinent regulations define the term "national interest," Matter 
ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Dhanasar states that USCIS may, as a 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. 
II. ANALYSIS 
The Director did not make a finding as to whether the Petitioner qualifies for the underlying EB-2 
classification. Rather, the Director analyzed only the Petitioner's eligibility for a national interest 
waiver. The Director found that the Petitioner established the substantial merit of his proposed 
endeavor and that he is well-positioned to advance it, but that the Petitioner had not established the 
national importance of the endeavor nor that, on balance, waiving the job offer requirement would 
benefit the United States. 
The record contains evidence that the Petitioner obtained a title of physician (titulo de medico) degree 
from the Universidade do Sul de Santa Catarina in Brazil in 2005 and completed a general surgery 
residency in 2008 and a head and neck surgery residency in 2010, both in Brazil. The record also 
contains evidence of the Petitioner's license to practice medicine in Brazil and his work experience as 
a surgeon in Brazil for approximately 11 years.2 Because the Director's decision and the Petitioner's 
appeal do not address whether the Petitioner established eligibility for the EB-2 classification as of the 
priority date, we reserve on this question and examine below whether the Petitioner has established 
eligibility under the Dhanasar analytical framework. 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"). 
The Petitioner states in his initially filing that his proposed endeavor is to work as a surgeon. The 
Petitioner states that through this endeavor he will be "helping U.S. health providers, medical 
institutions and U.S. hospitals improve medical procedures, and dealing with complex medical 
procedures." The Petitioner did not specify a type of surgery or specialization that he would pursue. 
In response to the Director's notice of intent to deny (NOID), which requested additional 
documentation to establish all three prongs of the Dhanasar analytical framework, the Petitioner 
further stated as to his proposed endeavor that he intended to accept a job offer from thel I 
Clinic Foundation inl IOhio as a clinical associate surgeon in the Department of Endocrine 
Surgery. 
As to the first prong of the Dhanasar analytical framework, as stated above the Director found that 
the Petitioner established the substantial merit of his proposed endeavor but not its national 
importance. Specifically, the Director found that the Petitioner did not establish that his proposed 
endeavor would have broader implications in the medical field. The Director concluded that the 
impact of the Petitioner's proposed endeavor would be limited to serving the patients of the hospital 
or institution where he would be working, and that there was insufficient evidence in the record to 
demonstrate how the Petitioner's proposed endeavor might extend beyond the organization and its 
patients to impact the industry or field more broadly. The Director also noted that the Petitioner had 
2 The Petitioner did not provide evidence to establish that he was licensed to practice medicine in the United States at the 
time of filing the petition. 
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not established that the proposed endeavor has the significant potential to employ U.S. workers or 
otherwise offer substantial positive economic effects that would be commensurate with national 
importance. 
On appeal, the Petitioner asserts that the Director did not apply the proper standard of proof: and 
instead imposed a stricter standard of review than the preponderance of the evidence. Specifically, 
the Petitioner claims that the Director did not give due regard to the Petitioner's professional plan, the 
evidence of his work in the field, his letters of recommendation, and the industry reports and articles 
submitted. The Petitioner asserts that this evidence establishes by a preponderance of the evidence 
the proposed endeavor has national importance. 
In determining whether a proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 T&N Dec. at 889. An endeavor that has national or global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances, may have national importance. Id. Additionally, an endeavor that is 
regionally focused may nevertheless have national importance, such as an endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area. Id. at 890. 
Upon de novo review, we conclude that the evidence of record and that the Petitioner highlights on 
appeal does not establish by a preponderance of the evidence the national importance of his proposed 
endeavor. As to the professional plan, the Petitioner asserts in the initially submitted plan that his 
proposed endeavor has national importance because he will develop treatments to improve health, 
provide quality patient care, supervise newer healthcare providers, promote public health, and 
negotiate healthcare costs. But rather than establishing how the Petitioner's specific proposed 
endeavor has national importance, several of these stated objectives simply describe the typical duties 
of a surgeon. 3 Additionally, other than listing these objectives, the plan does not provide further 
specific details as to how these objectives would be accomplished and the scope of these objectives. 
Without more details, the plan does not establish how these objectives would result in a broad impact 
on the medical field that would be commensurate with national importance. In determining national 
importance, the relevant question is not the importance of the industry, field, or profession in which 
an individual will work; instead we focus on the "specific endeavor that the [ noncitizen] proposes to 
undertake." See Matter ofDhanasar, 26 I&N Dec. at 889. 
In response to the Director's NOID, the Petitioner submitted a revised professional plan in which he 
states that he will pursue his proposed endeavor by accepting a job offer from theI !Clinic 
Foundation in I I Ohio as a clinical associate surgeon in the Department of Endocrine Surgery. 
The Petitioner provided a job offer letter from the I I Clinic Foundation, dated February 4, 
2022, which states that it is a "nonbinding letter of intent" for the Petitioner to be appointed as a clinical 
associate surgeon in the field of endocrine surgery, contingent upon obtaining a visa and Ohio medical 
license. The Petitioner asserts that this establishes his endeavor's national importance because 
3 In determining national importance, the analysis focuses on what the petitioner will be doing rather than the specific 
occupational classification. For instance, although the petitioner in Matter ofDhanasar was an engineer by occupation, 
the decision discusses his specific proposed endeavor "to engage in research and development relating to air and space 
propulsion systems, as well as to teach aerospace engineering." See generally, 6 USCJS Policy Manual F.5(D)(l), 
http://www.uscis.gov/policy-manual; see also Matter ofDhanasar, 26 I&N Dec. at 891. 
3 
._______.!is an economically depressed area, and therefore medically underserved, and because there 
is a national shortage of endocrine surgeons in the United States. The record does contain articles and 
reports related to the shortage of physicians and the lack of access to healthcare in the United States, 
but the Petitioner's professional plan does not credibly explain how his efforts as an individual surgeon 
will impact these issues on a scale that rises to the level of national importance. 4 We also note that 
the Petitioner must establish eligibility at the time of filing the petition. 8 C.F.R. § 103.2(b)(l2). The 
petition was filed in November 2019 and the job offer letter from the I IC!inic, dated February 
2022, was received over two years after the filing. Although the job offer letter is dated after the filing 
of the petition, we will consider the letter inasmuch as it demonstrates ongoing evidence of the 
Petitioner's pursuit of his endeavor to work as a surgeon. However, we will not consider the specifics 
of the location and the specialty of the I I Clinic job opportunity as part of the Petitioner's 
proposed endeavor, because those are circumstances that arose after the filing of the petition, and as 
such, cannot be used to establish eligibility. See Matter of lzummi, 22 I&N Dec. 169, 175 (Assoc. 
Comm'r 1998). We consider the Petitioner's proposed endeavor as he initially described it, which is 
to work as a surgeon. But we conclude that the attempt to add the specialty of endocrine surgery and 
the specific geographic area ot1 Ias part of the proposed endeavor is an attempt to change the 
proposed endeavor after the filing. 5 Therefore, we will consider whether the proposed endeavor has 
national importance based on how it was initially claimed at the time of filing. 6 
We also conclude that the evidence in the record relating to the Petitioner's work in the field does not 
establish the national importance of the proposed endeavor. The record does contain evidence to help 
show that the Petitioner is an experienced head and neck surgeon in Brazil, including the Petitioner's 
educational documents, work experience letters, evidence of membership in professional associations, 
and evidence of attending conferences for continuing medical education credits in Brazil. However, 
this evidence of the Petitioner's education, skills, and knowledge generally relates to the second prong 
of the Dhanasar analytical framework, which "shifts the focus from the proposed endeavor to the 
[ noncitizen ]" and whether he is well-positioned to advance it. Matter of Dhanasar, 26 I&N Dec. 
at 890. The issue here is whether the Petitioner's specific proposed endeavor - to be employed as a 
surgeon - has national importance under Matter of Dhanasar 's first prong. The evidence of the 
Petitioner's work in the field does not elaborate on the Petitioner's specific proposed endeavor nor its 
national importance. 
Similarly, the letters of recommendation that the Petitioner highlights on appeal do not establish the 
national importance of the proposed endeavor. The Petitioner submitted six letters of support, written 
4 The job offer letter itself also does not provide specific details that would help establish that this position is nationally 
important, nor describe the scale of the impact that this position would have on the problems oflack of access to healthcare 
and physician shortage in the United States. 
5 A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See id. at 176. 
6 Even if were we to consider the geographic location otl land the endocrine specialty as part of the Petitioner's 
proposed endeavor, we would conclude that the Petitioner had not established the endeavor's national importance. The 
fact of a shortage of U.S. workers in an occupation, such as endocrine surgeons, is not evidence of a related specific 
endeavor's national importance. As noted above, in determining national importance, the relevant question is not the 
importance of the industry, field. or profession in which an individual will work, but rather the "specific endeavor that the 
[ noncitizen] proposes to undertake." See Matter ofDhanasar, 26 I&N Dec. at 889. Moreover, the Petitioner still has not 
demonstrated that his efforts as an individual surgeon would address the problem of lack of access to medical care on a 
scale commensurate with national importance. 
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by professional associates, mentors, or supervisors. The letters speak highly of the Petitioner as a 
skilled surgeon with a high level of technical expertise who competently handles complex cases. For 
example, one of the letter writers, the chief surgeon at a hospital in Brazil where the Petitioner was 
previously employed, states that the Petitioner was the first surgeon in their region of Brazil to 
successfully perform a specific complex surgical procedure. Again, this evidence generally relates to 
the second prong of the Dhanasar framework and whether the petitioner is well-positioned to advance 
the proposed endeavor. Id. Overall, these letters ofrecommendation do not describe how the proposed 
endeavor of working as a surgeon has the potential to result in a broad impact that would be 
commensurate with national importance. By contrast, the petitioner in Matter ofDhanasar submitted 
expert letters from individuals holding senior positions in academia, government, and industry that 
described the national importance of the petitioner's specific area ofresearch. Id. at 893. Another of 
the letters, submitted in response to the Director's NOID and written by a surgeon at thel I 
Clinicj describes the research projects that the Petitioner has been involved with since being employed 
by the !Clinic as a clinical research fellow in endocrine surgery. Again, this employment, 
and the related research projects, appear to have arisen after the filing of the petition, and as such do 
not help establish the national importance of his proposed endeavor and eligibility at the time of filing. 
See 8 C.F.R. § 103.2(b)(12). Moreover, the record does not contain other evidence related to this 
research, the Petitioner does not mention conducting research as part of his proposed endeavor, either 
in the initial filing or in response to the NOID, and the record does not demonstrate that his proposed 
endeavor involves research. Therefore, we conclude that the letter does not help establish the national 
importance of the Petitioner's proposed endeavor of working as a surgeon. 
Finally, as the Petitioner notes on appeal, the record contains several articles and industry reports 
which the Petitioner claims help establish the proposed endeavor's national importance. As mentioned 
above, the record contains articles and reports on the lack of access to healthcare in the rural United 
States and the shortage in the United States of physicians and healthcare workers in general. The 
record also contains articles on visa restrictions related to the coronavirus pandemic for foreign 
doctors, a medical journal article on chronic pain, articles and studies on the high cost of healthcare in 
the United States, and the O*NET Online Summary Report and the Occupational Outlook Handbook 
information for the occupation of"physicians and surgeons, all other." However, this evidence relates 
to the medical field and surgery profession overall. The articles and reports do not discuss the 
Petitioner nor his proposed endeavor of working as a surgeon and do not support the endeavor's 
national importance. The Petitioner does not provide evidence that would support the conclusion that 
the Petitioner's proposed endeavor would lessen the shortage of physicians, decrease the cost of 
healthcare, or increase access to healthcare in rural communities on a scale rising to the level of 
national importance. The Petitioner bears the burden of proof to establish eligibility for the benefit 
sought. Matter ofChawathe, 25 T&N Dec. at 3 75-76. The Petitioner must submit "relevant, probative, 
and credible evidence" to establish the national importance of his proposed endeavor, and we conclude 
that the Petitioner has not met his burden of proof to establish this claim with his unsupported 
assertions alone. Id. at 376. 
Finally, we note that counsel for the Petitioner makes numerous assertions on appeal that the proposed 
endeavor has national importance. Counsel asserts that the Petitioner has established the endeavor's 
national importance because it "will have broader implications within his field, due to the ripple effects 
of his professional activities" and "will impact more than just his served companies/hospitals, and 
instead has the potential to reach the patients, families, and affiliates of said patients, based on his 
5 
guidance and practices .... " Counsel also contends that the proposed endeavor "offers invaluable 
solutions to U.S. medical clinics and to medical health professionals at large, given the country's 
appalling health state, exacerbated by an intensive, and rising, shortage of industry professionals." 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 T&N Dec. 533, 534 n.2 
(BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel's 
statements must be substantiated in the record with independent evidence. Counsel's assertions here 
are not sufficiently supported by evidence in the record. 
Although the record reflects the Petitioner's experience as a surgeon in Brazil and his intention to 
provide high quality care to his patients, the Petitioner has not offered sufficient information or 
evidence to demonstrate that the prospective impact of his proposed endeavor rises to the level of 
national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise 
to the level of having national importance because they would not extend beyond his students to impact 
his field more broadly. Matter ofDhanasar, 26 I&N Dec. at 893. Here, we conclude the Petitioner 
has not shown that his proposed endeavor stands to sufficiently extend beyond his hospital and its 
patients to impact the medical field at a level commensurate with national importance. 
In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
acknowledge the Petitioner's arguments on appeal as to the third prong ofDhanasar but, having found 
that the evidence does not establish the Petitioner's eligibility under the first prong, we will not address 
those arguments here. We reserve our opinion regarding whether the record satisfies the second or 
third Dhanasar prong, as well as whether the Petitioner has established eligibility for EB-2 
classification. See INS v. Bagamasbad, 429 U.S. at 25 ("courts and agencies are not required to make 
findings on issues the decision of which is unnecessary to the results they reach"). 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude that the Petitioner has not established that he is eligible for or otherwise merits a 
national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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