dismissed EB-2 NIW Case: Veterinary Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 29, 2023 In Re: 28049738 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a veterinary assistant, seeks classification as a member of the professions holding an 
advanced degree or an individual of exceptional ability in the sciences, arts, or business. 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. 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 the Petitioner was well-positioned to advance her endeavor or that, on balance, it would 
benefit the United States to waive the job offer requirement. 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. 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)(2) of the Act. 
Neither the statute nor the pertinent regulations define the term "national interest." Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016) states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver if the petitioner demonstrates that: 
(1) the noncitizen's proposed endeavor has both substantial merit and national importance; (2) that the 
noncitizen is well-positioned to advance the proposed endeavor; and (3) that, on balance, it would 
benefit the United States to waive the requirements of a job offer and thus of a labor certification. 
II. ANALYSIS 
The Petitioner initially indicated that she seeks to open a veterinary clinic inl ITexas. The 
Director found that the Petitioner qualifies for the EB-2 classification as an individual of exceptional 
ability and that she meets the first prong of the Dhanasar test because her proposed endeavor has both 
substantial merit and national importance. The issues on appeal are therefore whether the Petitioner 
meets Dhanasar 's second and third prongs by being well-positioned to advance her endeavor and by 
establishing that, on balance, it would benefit the United States to waive the job offer requirement in 
her case. On appeal, the Petitioner provides a brief regarding her qualifications for a national interest 
waiver. 
A. Petitioner is Not Well-Positioned to Advance Her Endeavor 
The second prong of Dhanasar examines the noncitizen's ability to realize their proposed endeavor 
by considering "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." Matter ofDhanasar, 26 I&N Dec. at 890. 
In the present case, the Petitioner initially proposed to open a veterinary clinic in Texas. In her initial 
filing, she provided copies of her educational and training credentials, her resume, professional 
experience letters, a business plan, letters of support, and various photographs. The Director issued a 
request for evidence (RFE) requesting, among other things, farther documentation establishing her 
ability to advance the proposed endeavor, such as evidence of her past success in similar efforts, 
progress made towards opening the clinic, and interest shown by potential investors and customers. 
In response, the Petitioner provided a "definitive statement" of her endeavor, a Florida business 
registration, a revised business plan, and more letters of support, and resubmitted various documents 
from her initial filing. The Director concluded that this documentation was insufficient to establish 
the Petitioner's past record of success in similar endeavors or her progress in advancing the present 
one, and that she therefore did not meet the second Dhanasar prong. 
On appeal, the Petitioner provides a brief stating that "she is folly capable and well positioned to 
advance the proposed endeavor due to her record of achievements and expertise in the field, as well 
as through her various leading and critical roles for the companies worked." 1 She does not specify 
any achievement or expertise that the Director overlooked. Upon a review of the record, we conclude 
that the Petitioner is not well-positioned to advance her endeavor. 
We first examine the Petitioner's education, skills, knowledge, and record of success in related or 
similar efforts. The record indicates that the Petitioner earned the equivalent of a U.S. baccalaureate 
1 The Petitioner also indicated on her Form I-290B, Notice of Appeal or Motion, that she would submit a brief and/or 
additional evidence within 30 calendar days of filing her appeal. To date, we have not received a brief or additional 
evidence. 
2 
degree in veterinary medicine in 2019. She also worked as a veterinary assistant from July 2008 to 
January 2020. The support letters from her former teachers and employers indicate that the Petitioner 
is a capable and skilled veterinary assistant. 2 We conclude that the Petitioner has the education, skills, 
and knowledge to work as a veterinary assistant, as well as a record of past success in this role. 
However, the record does not indicate that the Petitioner is similarly prepared to open or operate her 
own veterinary clinic. There is no documentation in the record indicating that the Petitioner has ever 
run such a clinic or any other business. As such, we cannot find that she has a record of success as an 
entrepreneur. 
We tum next to the Petitioner's model or plan for her future activities. In order to demonstrate 
eligibility by a preponderance of the evidence, the Petitioner must provide relevant, probative, and 
credible evidence establishing that their claims are "probably true." Matter ofChawathe, 25 I&N Dec. 
at 376 (quoting Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). Here, the record does not 
contain such evidence to support the claims made in the Petitioner's business plan. For example, the 
plan states that the business will be entirely self-fonded, but is not accompanied by any documentation 
demonstrating that the Petitioner has the means to pay for the clinic's stated $56,236 in startup 
expenses. The business plan also does not provide any support for its revenue projections, such as 
price lists for its services or comparisons to similar businesses and their prices and revenues. Instead, 
it states that "[t]he average established hourly services price will be $49" without farther elaboration. 
The plan also projects increased revenues every year without an increase in staffing or prices charged, 
a result which it does not explain. Assumptions such as facility rental costing $1,200 a month are also 
not supported by documentation indicating that an appropriate facility can be rented inl lor 
elsewhere, for this price. It is therefore not apparent that the Petitioner has conducted a level of 
planning which makes her well-positioned to advance her endeavor. 
The record also does not contain sufficient documentation to show that the Petitioner has made 
progress towards opening her clinic in the U.S. The business registration provided in response to the 
RFE is from March 2022, which is after the petition filing date of January 2022. Because eligibility 
must be established as of the time of filing, this evidence cannot be counted towards the Petitioner's 
eligibility. 8 C.F.R. § 103.2(b )(1 ). Furthermore, this registration is for the state of Florida, rather than 
Texas, where the clinic was originally to be located. While the revised business plan provided in 
response to the RFE includes some added information regarding the Florida economy and job market, 
it also retains the original plan's information about the business environment and plans to open in 
Texas. It is therefore not apparent whether the Petitioner plans to open her business in Florida, in 
Texas, or in both states. It appears that she materially changed her initial plan to open a clinic solely 
in Texas. 
Petitioners may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to USCIS requirements. Matter oflzummi, 22 I&N Dec. 169, 
175 (BIA 1988) (citing Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r. 1971)). The endeavor's 
location is material to both its national importance under the first Dhanasar prong and the Petitioner's 
level of preparation under the second prong. For this additional reason, the Petitioner's Florida 
2 The awards and press coverage the Petitioner submitted regarding her experience as a competitive rodeo rider are not 
relevant to her endeavor and so will not be analyzed under this criterion. 
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business registration does not indicate that she has made progress towards achieving her initial 
proposed endeavor in Texas. 
As of the time of filing, the Petitioner had only composed a business plan for her proposed endeavor. 
The record does not indicate that she obtained funding, registered her business, or otherwise advanced 
towards the goal of opening a veterinary clinic at that time. The business plan does not indicate a level 
of progress that would make the Petitioner well-positioned to advance her endeavor. 
Next, we examine whether the Petitioner has documented the interest of customers, users, investors, 
or other relevant entities or individuals. As noted above, the Petitioner claims that her business will 
be self-funded and as such will not require investors. While she did provide letters from potential 
customers in response to the Director's RFE, these letters are dated November and December 2022, 
well after the filing date of January 2022. Eligibility must be established as of the time of filing. 
8 C.F.R. § 103.2(b)(l). The letters therefore do not document the qualifying interest of customers or 
other relevant individuals for the purposes of this prong of the Dhanasar test. 
Finally, while not mentioned by the Director, we note that the state of Texas prohibits any business 
entity from engaging in the practice of veterinary medicine unless it is completely owned by a licensed 
veterinarian or veterinarians. Tex. 0cc. Code Ann. § 801.506. It also prohibits veterinary assistants 
from making decisions about an animal patient's care or performing veterinary tasks without the 
supervision and instruction of a licensed veterinarian. Tex. 0cc. Code Ann. §§ 801.363-4. The 
Petitioner's documentation does not mention working with a licensed veterinarian and her business 
plan does not account for paying for a veterinarian's services. While the original business plan states 
at one point that the company will operate in the industry of "specialty animal services, except 
veterinary," the information it provides regarding its industry, competitors, and suppliers all pertains 
to the veterinary care industry. Furthermore, the petition repeatedly refers to the endeavor as a 
veterinary clinic and the office blueprint provided includes rooms labeled "surgery center," "clinical 
care," and "hospitalization and recovery," indicating that the business is intended to engage in the 
practice of veterinary medicine. The Petitioner has not stated how her business would comply with 
Texas law without employing or being owned by a licensed veterinarian. While not a basis for denial, 
in any future filing, the Petitioner must address this deficiency. 
The record indicates that the Petitioner has education, skills, and a record of success in her occupation 
of veterinary assistant. However, she does not have experience as an entrepreneur, and given her lack 
of funding, planning, and business registration as of the filing date, she has not achieved a level of 
progress that renders her well-positioned to advance the proposed endeavor. 
The Petitioner has not met the requisite second prong of the Dhanasar analytical framework. As such, 
we need not examine her eligibility under the third prong and hereby reserve this issue. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant did 
not otherwise meet their burden of proof). 
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B. Visa Classification Eligibility 
Upon de novo review of the record, we will withdraw the Director's conclusion that the Petitioner 
demonstrated her eligibility for the EB-2 immigrant classification as an individual of exceptional 
ability in the sciences, arts, or business. The exceptional ability classification initially requires 
petitioners to submit evidence meeting at least three of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
The Petitioner's college degree and academic record meet the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), and the evidence establishes that she is a member of professional associations, 
meeting the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). However, the Brazilian veterinary identification 
card the Petitioner submitted was expired as of the time of filing, and so cannot fulfill the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(C), which requires "a license to practice the profession or certification for a 
particular profession or occupation." 8 C.F.R. § 103.2(b)(l). We will withdraw the Director's 
conclusion that the Petitioner meets this criterion. 
As noted by the Director, the Petitioner's work experience letters do not state whether she was 
employed full-time, and therefore do not indicate that she has the ten years of work experience in her 
occupation, as required for the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B). She did not submit evidence 
regarding her salary or other remuneration, and so has not established that these demonstrate her 
exceptional ability for the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). Finally, while the support letters 
from the Petitioner's employers and teachers commend her abilities, the accomplishments they 
recognize consist of work which benefitted her employers and customers without having significance 
for the broader field of veterinary medicine. The letters, as well as the news stories mentioning the 
Petitioner, do not name any significant contribution that the Petitioner has made to her field or industry. 
This does not meet the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). The Petitioner has not met the initial 
evidentiary requirements of the exceptional ability classification. 8 C.F.R. § 204.5(k)(3)(ii). 3 
Further, the Petitioner has not established that she qualifies for EB-2 classification as an advanced 
degree professional. The record does not indicate that she has a U.S. academic or professional degree 
or a foreign equivalent degree above that of a baccalaureate. 8 C.F.R. § 204.5(k)(2). Additionally, 
while she has demonstrated her receipt of the foreign equivalent of a U.S. bachelor's degree, she has 
not demonstrated that she has five years of progressive post-baccalaureate work experience in her 
specialty. 8 C.F.R. § 204.5(k)(3)(i). The Petitioner has not established eligibility for the EB-2 visa 
classification, and we withdraw the Director's finding to the contrary. 
C. National Importance of Petitioner's Endeavor 
We will additionally withdraw the Director's conclusion that the Petitioner meets the first prong of 
the Dhanasar test. This prong, substantial merit and national importance, focuses on the specific 
3 Because the Petitioner's eligibility for a waiver of the job offer requirement is dispositive of this case, and because she 
has not met the initial evidentiary requirements for the exceptional ability classification, we will not conduct a final merits 
analysis to determine whether the Petitioner has a degree of expertise significantly above that ordinarily encountered in 
the sciences, arts, or business, such that she will substantially benefit the economy, cultural or educational interest, or 
welfare of the United States. 8 C.F.R. 204.5(k)(2); section 203(b)(2)(B) of the Act. We note, however, that her awards 
and media coverage are almost entirely related to her rodeo riding, rather than her work as a veterinary assistant. The 
Petitioner should be prepared to address this issue in any future proceedings requiring her to demonstrate her eligibility 
for the exceptional ability classification. 
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endeavor the Petitioner proposes to undertake. Matter ofDhanasar, 26 I&N Dec. at 889-90. While 
we agree that the Petitioner's endeavor has substantial merit, the record does not establish its national 
importance. National importance is determined by examining an endeavor's potential prospective 
impact. Id. An endeavor may qualify if, for example, it has national implications within a particular 
field, or if it has significant potential to have a substantial economic effect, especially in an 
economically depressed area. Id. 
Here, the record does not contain sufficient evidence to establish what impact the Petitioner's endeavor 
would have beyond her customer base and employees. There is no indication that the Petitioner's 
endeavor will have national implications in the broader field of veterinary medicine. The evidence 
also does not establish how a veterinary clinic employing three to four people will generate sufficient 
business activity to constitute a significant economic benefit to the United States, Texas, Florida, or 
any other region, such that it would rise to the level of national importance. Therefore, the Petitioner 
has not demonstrated the national importance of her endeavor, and we will withdraw the conclusion 
that she meets the first prong of the Dhanasar test. 
III. CONCLUSION 
Because the Petitioner has not met the second prong of the Dhanasar analytical framework, she has 
not established that she is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. Furthermore, we will withdraw the Director's conclusions that the Petitioner qualifies as 
an EB-2 individual of exceptional ability and meets the first prong of the Dhanasar test. The petition 
will remain denied. 
ORDER: The appeal is dismissed. 
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