dismissed EB-2 NIW Case: Surgery

U.S. Citizenship 
and Immigration 
Services 
In Re: 10422826 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 12, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a surgeon, seeks second preference 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 EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that the Petitioner 
had not established that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. 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. 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. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their 
equivalent or who because of their exceptional ability in the sciences, arts, 
or business, will substantially benefit prospectively the national economy, 
cultural or educational interests, or welfare of the United States, and whose 
services in the sciences, arts, professions, or business are sought by an 
employer in the United States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... the Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the 
sciences, arts, professions, or business be sought by an employer in the 
United States. 
While 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). 1 Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as a 
matter of discretion, grant a national interest waiver if the petitioner demonstrates: ( 1) that the foreign 
national's proposed endeavor has both substantial merit and national importance; (2) that the foreign 
national 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 that the 
foreign national 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 foreign national. To determine 
whether he or she 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; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 2 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The Director farther found that the proposed endeavor has substantial merit; however, the 
Director concluded that the Petitioner did not establish that the proposed endeavor has national 
importance. For the reasons discussed below, the Petitioner has not established that a waiver of the 
requirement of a job offer is warranted. 
The Petitioner initially described the proposed endeavor as "[ c ]linical observation and diagnosis, 
reconstructive surgery of nerves, ligaments, and tissues" as a reconstructive surgeon. The Petitioner 
also referenced potential speaking engagements regarding reconstructive surgery. In response to the 
Director's request for evidence (RFE), the Petitioner also noted "commitment letters from the I I I I based in I I OH[,] . . . and a private entity[,] 
I !(Florida)," inviting the Petitioner "to participate as a 
mentor and instructor of the training programs organized by these providers." The Petitioner farther 
asserted that "after my admission to the U.S. I will be able to expand my network to secure more 
training and consulting engagements of the similar nature. 3 
On appeal, the Petitioner directs our attention to The Complexities of Physician Supply and Demand: 
Projections from 2017-2032, a study completed by the Life Science division of HIS Markit at the 
request of the Association of American Medical Colleges (AAMC). In relevant part, the study 
estimates that there will be a shortage of "surgical specialists" between 14,300 and 23,400 by 2032. 
However, the study does not elaborate on the estimated shortage of any particular type of surgical 
specialist, specifically regarding the estimated shortage of reconstructive surgical specialists. 
The Petitioner also directs our attention to a report titled National and Regional Projections of Supply 
and Demand.for Surgical Specialty Practitioners: 2013 - 2025, prepared by the U.S. Department of 
Health and Human Services, which, in contrast to the general information in the AAMC study, 
estimates that the shortage of reconstructive surgeons in 2025 would be approximately 1,500.4 
The Petitioner also asserts on appeal that an article published by the Annals of Plastic Surgery in 2014 
establishes the national importance of the proposed endeavor. The article states that "[ a ]n expanding 
U.S. population[,] ... growing competition from other specialties, a constant rate of retiring plastic 
surgeons, and a static number of residents places increasing demands on the plastic surgical workforce 
in the coming years." 
The Petitioner's proposed endeavor of practicing reconstructive surgery and training reconstructive 
techniques to other surgeons, in light of the evidence of a prospective shortage of reconstructive 
surgeons has merit; however, whether the endeavor has merit is not an issue on appeal. Instead, the 
2 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
3 Although we do not discuss each document in the record for brevity, we have reviewed the record in its entirety. 
4 The publication refers to the particular type of surgical specialists as ·'plastic surgery." 
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issue is whether the endeavor has national importance. The first Dhanasar prong requires an endeavor 
to have both substantial merit and national importance, as separate, conjunctive criteria. Dhanasar, 
26 I&N Dec. at 889-90. 
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. 
The Petitioner does not assert, and the record does not support the conclusion, that the proposed 
endeavor would cause "national or even global implications" within the field ofreconstructive surgery. 
Id. We acknowledge that the instructional aspect of the proposed endeavor may train other surgeons 
to perform reconstructive surgical techniques; however, the Petitioner does not establish how his 
endeavor would improve processes or advance the practice of medicine or surgery that would impact 
the field more broadly. 
The record does not support the conclusion that the proposed endeavor would "have significant 
potential to employ U.S. workers." Id. at 890. The instructional aspect of the proposed endeavor 
appears to train surgeons that are already employed as such, rather than creating new surgeons who 
are not already employed as surgeons. In response to the RFE, the Petitioner asserted that his endeavor 
also includes "eventually financ[ing] my own diagnostic facility with training opportunities for young 
professionals ... [which] will require hiring licensed physicians and qualifying staff" However, the 
Petitioner does not elaborate on when he eventually plans to establish the facility, where he intends to 
establish the facility, the number of physicians and staff he intends to hire, and other details that would 
assist us in understanding whether the endeavor has "significant potential to employ U.S. workers." 
Dhanasar, 26 I&N Dec. at 890. 
The Petitioner asserts on appeal that his "established credentials and commitment to the practice of 
reconstructive surgery create opportunity for the positive impact in lives of many individuals affected 
by debilitating conditions and alleviate [the] adverse economic impact of the shortage in particular 
geographic areas." However, as noted above, the endeavor's opportunity to improve the quality of 
life of individuals affected by debilitating conditions addresses the endeavor's merit, rather than its 
national importance, because the record does not establish that the reconstructive surgery would have 
"substantial positive economic effects" on those individuals. Dhanasar, 26 I&N Dec. at 890. 
Although the Petitioner references alleviation of the "adverse economic impact of the shortage [ of 
reconstructive surgeons] in particular geographic areas," the only geographic areas his endeavor 
specifically identifies are I I Ohio, and the state of Florida. A venture or undertaking that 
focuses on one geographic area of the United States may establish national importance if it can 
demonstrate broader implications, such as the significant potential to employ U.S. workers or other 
substantial positive economic benefits. Dhanasar, 26 I&N Dec. at 890. Here, the Petitioner does not 
establish that the proposed endeavor will broadly impact the field of reconstructive surgery such that 
it rises to the level of national importance. The Petitioner does not elaborate on the shortage of 
reconstructive surgeons itj I Ohio, and any particular part of the state of Florida, beyond the 
national estimates discussed above. The Petitioner also does not elaborate on how many surgeons he 
would train to perform reconstructive surgical techniques in those areas, whether those areas are 
4 
economically depressed, the extent to which training surgeons to perform reconstructive surgical 
techniques in those areas-or performing the reconstructive surgical procedures himself-would 
affect the areas' economic depression, and other salient details. Accordingly, the Petitioner has not 
demonstrated the proposed endeavor would have "substantial positive economic effects," or otherwise 
demonstrated its national importance. Dhanasar, 26 I&N Dec. at 890. 
In summation, the Petitioner has not established that the proposed endeavor has both substantial merit 
and national importance, as required by the first Dhanasar prong, and therefore is not eligible for a 
national interest waiver. We reserve our opinion regarding whether the record satisfies the second or 
third Dhanasar prong. 
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. 
ORDER: The appeal is dismissed. 
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