remanded EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 12138604 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 08, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physician, seeks second preference immigrant classification as a member of the 
professions holding an advanced degree and/or as an individual of exceptional ability, 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. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner's proposed endeavor was of national importance. In addition, he found 
that the Petitioner did not show that on balance, it would be beneficial to the United States to waive 
the job offer requirement in the requested EB2 immigrant visa classification. 
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 withdraw the Director's 
decision and remand the matter for further consideration and the entry of a new decision consistent 
with the following analysis. 
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 of job offer-
(i) National interest waiver. ... [T]he 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. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiary is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. § 
204.5(i)(3)(i). 
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. 884.2 Dhanasar 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: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
1 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. USCIS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14, PM-602-0005.1 (Dec. 22, 
2010). 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department o( 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
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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) 
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. 3 
II. ANALYSIS 
The Petitioner has previously been employed as a physician in her home country, both in general 
practice and weight loss and aesthetics. She has also worked as a technical head of staff focused on 
providing training and guidance on the operation, storage, and disposal of medical products. 
A. Eligibility for the Underlying EB-2 Classification 
In her initial submission, the Petitioner claimed to be eligible as both a member of the professions 
holding an advanced degree, and as an individual of exceptional ability, and submitted evidence in 
support of these claims. Although the Director's request for evidence (RFE) noted that eligibility for 
a national interest waiver also required a showing of eligibility for the requested visa classification, he 
did not request additional evidence in support of the Petitioner's eligibility for the EB-2 classification. 
While this indicates that the Director believed the initial evidence to be sufficient, he did not state in 
his decision whether he had concluded that the Petitioner was eligible, and did not provide any analysis 
of the evidence submitted in support of the Petitioner's eligibility as either a member of the professions 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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holding an advanced degree or an individual of exceptional ability. We are therefore remanding this 
matter to the Director to issue a new decision which includes a conclusion regarding the Petitioner's 
eligibility for the underlying EB-2 visa classification as well as an analysis of the evidence to support 
that conclusion. 
When conducting the analysis of the Petitioner's eligibility for the EB-2 visa classification, the 
Director should consider in particular whether, in support of her qualification as a member of the 
professions holding an advanced degree, the Petitioner has submitted evidence demonstrating that she 
has at least five years of progressive experience in the specialty in which she intends to pursue her 
endeavor in the United States. 4 Similarly, if he determines that the Petitioner has not established her 
qualification as a member of the professions holding an advanced degree, the Director should consider 
whether she has submitted evidence to establish she has at least ten years of full time experience in an 
occupation in the endeavor she intends to pursue in the United States. 
B. Eligibility for a National Interest Waiver 
The Petitioner initially indicated on Form I-140, in the "petition letter" accompanying the petition, 
and in the first "professional plan and statement" she submitted that her proposed endeavor was to 
work as a medical researcher, "specializing in the areas of medicine, surgery, preventive medicine, 
ambulatory care, emergency medicine, nutrition, aesthetics, and clinical practice." She described her 
work in this proposed endeavor as follows: 
• Fill a position as a Medical Researcher that is vacant due to a large demand for such 
professionals. 
• Investigate cause, progress, life cycle, or mode of transmission of diseases or parasites. 
• Educate patients, communities, and peers on proper techniques and treatments through 
extensive research. 
• Teach principals of medicine and medical and laboratory procedures to physicians, residents, 
students, and technicians. 
• Confer with health departments, industry personnel, physicians, and others to develop health 
safety standards and public health improvement programs. 
In her response to the Director's request for evidence (RFE), she submitted a new "professional plan 
and statement" which made no mention of medical research, nor did the response letter from counsel. 
This new letter and statement indicated that she intends to continue to own and manage her medical 
supply business, as well as work towards completing the United States Medical Licensing 
Examination (USMLE) to allow her to obtain a medical license and practice family medicine. The 
4 The Petitioner submitted an evaluation of her training, education, and experience which concludes that she holds the 
equivalent of a U.S. Doctor of Medicine degree "based upon a combination of Academics and a minimum of 5 years of 
Professional experience ... " However, that evaluation states that her diploma from the University ofl lin 
I I Rrazil which conferred the title of "Doctor" ( erroneously referred to as a bachelor's degree) "indicate[ s] that 
[ the Petitioner] satisfied requirements substantially like those required toward the completion of a Bachelor of Medicine 
from an accredited institution of higher education in the United States," and not that is the equivalent of an advanced 
degree from a U.S. college or university. She would therefore need to provide evidence of five years of progressive, post­
baccalaureate experience in the specialty in which she proposes to pursue her endeavor. 
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Petitioner also stated in these documents she intends to become a franchisee for a medical clinic chain, 
and focus on opening clinics in medically underserved areas. 
However, a petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). Rather than providing additional evidence in support of her proposed endeavor as a 
medical researcher as requested, the Petitioner responded to the RFE with a completely new proposed 
endeavor involving three facets ( obtaining a medical license to practice medicine, operating a medical 
supply company, and opening medical clinics as a franchisee), none of which include duties relating 
to medical research. Because a petitioner seeking a national interest waiver must, under the first prong 
of the Dhanasar framework, demonstrate the substantial merit and national importance of their 
proposed endeavor, a change in the nature of that endeavor from vague research goals to medical 
practice and business administration is material to eligibility for the waiver. 
In addition, the first prong of the Dhanasar framework focuses on the specific endeavor that the 
individual proposes to undertake, rather than the substantial merit and national importance of the 
overall field in which the endeavor resides. See Dhanasar, 26 I&N Dec. at 889. Therefore, on remand, 
the Director should first consider whether the Petitioner provided sufficient detail in describing her 
proposed endeavor in medical research in response to his RFE which requested such evidence. If he 
determines that the record includes sufficient information regarding the Petitioner's specific proposed 
endeavor, he should then analyze the evidence submitted in support of the Petitioner's proposed 
endeavor as a medical researcher under the Dhanasar framework to determine whether she is eligible 
for a national interest waiver. Because the proposed endeavor submitted in response to the Director's 
RFE constitutes a material change, he should not consider this evidence in making that determination. 
ORDER: The Director's decision is withdrawn and the matter is remanded for further 
consideration and the entry of a new decision consistent with the above analysis. 
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