remanded EB-2 NIW Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re : 15897947 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 22, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physical therapist, 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. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that she 
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 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)Waiverofjob 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, 
aiis, 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 beneficiaty 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 te1m "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 8 84. 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. USCTS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form I-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 o{Ncw York State Department of 
Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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 ce1iification. 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 offerorforthepetitionerto 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 wan-ant forgoing the labor ce1iification 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 Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 4 The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus a labor certification, would be in the national interest. 
At the time of filing, the Petitioner was in the process of validating her licensing and professional 
credentials. The Petitioner's proposed endeavor centers around her desire to work in a healthcare 
facility setting where she will treat patients suffering from functional problems, sp01is and work­
related injuries, as well as "disorders related to cardiorespiratory function, lung infections, and arterial 
hypertension circulation; immobility, motor dysfunctions; postural asymmetries; poor ergonomic 
conditions; and many other conditions." In addition to providing patients with proper diagnosis and 
treatment, the Petitioner also seeks to "[e]ducate other physiotherapists on proper techniques and 
3
SeeDhanasar,26I&NDec.at888-91,forelaborationonthesethr,...e~en-r=o-n_gs~------------~ 
4 The Petitioner received a Bachelor of Physiotherapy degree froml , 
I I in January2004and demonstrated that she had at least five years ofprogressivefull-time employment as a physical 
therapist when this petition was filed. 
3 
treatments" and "[ m ]onitor and manage other therapists, assistants, and others involved in the 
diagnosis and recovery process." 
A. Substantial Merit and National Importance of the Proposed Endeavor 
In the denial, the Director determined that the Petitioner did not adequately explain her specific 
unde1iaking and therefore did not establish the existence of a proposed endeavor. On the basis of this 
determination, the Director concluded that the Petitioner did not meet the criteria of the first prong of 
the Dhanasar analytical framework. Although we disagree with the Director's underlying reasoning 
and find that the Petitioner adequately identified a proposed endeavor, we agree that the Petitioner did 
not demonstrate that her proposed endeavor is of national importance. 5 Therefore, for the reasons 
discussed below, we conclude that the Petitioner did not meet the criteria of the first prong of the 
Dhanasar analytical framework. 6 
In the Petitioner's "Professional Plan & Statement," she provided a review of her professional histoty, 
which included a list of her prior employers and treatment methods she used to treat patients, including 
"the global postural reeducation (RPG) technique" and "Pilates with the mat and reformer methods," 
which she claims to have used to create treatment programs for patients with 01ihopedic, neurologicaL 
and rheumatological ailments. The Petitioner also provided the following description of her skills in 
the field of physical therapy: 
I can provide care to people of all ages who have functional problems resulting from 
back and neck injuries, sprains, strains, fractures, arthritis, amputations, 
musculoskeletal problems, neurological disorders, degenerative diseases, aging 
process, muscular weaknesses, impaired motor functions, [and] 01ihopedic 
dysfunctions. Additionally, I can help treat injuries related to work and sports; and 
disorders related to cardiorespiratory function, lung infections, and arterial 
hypertension circulation; immobility, motor dysfunctions; postural asymmetries; poor 
ergonomic conditions; and many other conditions. 
The Petitioner claimed that her proposed endeavor will result in economic and social benefits because 
it will allow her to provide services that will improve the quality of patients' lives, reduce 
hospitalization time, and allow patients to "participate in the community and economy." 
The Petitioner also provided employment letters - one from a prior colleague and three from 
individuals who hired and were responsible for overseeing the Beneficiary's work. All four 
individuals verified the Petitioner's level of professional skills and described patient cases in which 
the Petitioner improved the respective patients' orthopedic conditions through physical therapy. 
In a request for evidence (RFE), the Director instructed the Petitioner to provide evidence establishing 
her proposed endeavor has national importance. The Director provided a potential list of documents 
5 The Petitionerprovidedanarticle discussing the growing demand forphysical therapists as well as reports demonstrating 
a demand for physical therapists; physical therapy's expanding role in healthcare; and its effectiveness in improving patient 
care and pain management and reducing healthcare costs associated with certain types of injuries. In sum, the submitted 
documentation supports the Petitioner's claim thatherproposed endeavor has substantial merit. 
6 While we may not discuss every document submitted, we have reviewed and considered each one. 
4 
the Petitioner could submitto demonstrate eligibility under this prong, including reports or letters from 
government agencies or industry groups describing the proposed endeavor or illustrating the 
endeavor's national importance, articles from scientific or professional journals showing that the 
proposed endeavor has national or global implications within the field or that it is the subject of 
national initiatives, or evidence that the endeavor has potential to create substantial economic effects. 
In response, the Petitioner submitted a "Professional Plan and Statement" describing her proposed 
endeavor to use her" expertise in physical therapy rehabilitation and management to contribute to U.S. 
population health" and "enhance health service operations in a number of businesses and clinics," 
thereby "promoting a positive impact on the U.S. economy." The Petitioner further stated that she 
intends to "accurately address nation-wide medical concerns," including medical costs, hospital 
readmissions, use of opioids, and excessive recovery times. Although the Petitioner claimed thatthere 
is a "dire sh01iage" of physical therapists in the United States, one of the aiiicles she provided directly 
contradicts that assertion and instead forecasts that there would be '"a 44% increase in the number of 
practicing Physical Therapists in the next IO years" and that the number of new graduates "greatly 
overshadows the rate of retiring Physical Therapists" making the PT job market "a little more 
competitive each year." Physical Therapist Jobs Outlook: A 10 Year Forecast of Massive Growth, 
https://ptprogress.com/physical-therapist-jobs-outlook (last modified November 17, 2018). 
Fmihermore, even if the Petitioner was able to establish a shortage of physical therapists in the United 
States, the U.S. Department of Labor addresses shortages of qualified workers through the labor 
certification process. Accordingly, a shortage alone would not demonstrate that waiving the 
requirement of a labor certification would benefitthe United States. Moreover, none of the documents 
submitted establish that the benefits of working as a physical therapist in a healthcare facility, the 
proposed endeavor, would extend beyond her patients and employers in a manner that could be 
considered of national imp01iance. 
Further, although the Petitioner claimed that she has expanded her physical therapy knowledge by 
taking a course on respiratory therapy treatment for COVID-19 patients, this information does not 
support the Petitioner's eligibility, which must be based on facts and circumstances that existed at the 
time the petition was filed. See 8 C.F.R. § 103 .2(b )( 1 ). Because the petition was filed in 2019, any 
new skills the Petitioner may have acquired in 2020, including skills that may have resulted from the 
2020 pandemic, will not be considered in determining whether the Petitioner's proposed endeavor had 
national merit at the time of filing. Likewise, the Petitioner's claim that she is now "in the process of 
validating" her professional credentials in the United States similarly lacks probative value, as the 
validation had not been completed at the time of filing. 
The Petitioner also provided: articles discussing the role of physical therapy in transforming pain 
management, reducing hospital readmissions and chronic opioid use, and the effects of physical 
therapy intervention on older patients with low back pain; reports on the economic costs and negative 
impact of the opioid crisis in the United States; and a study on the connection between early physical 
therapy intervention and prolonged use of opioids to manage pain. Although these documents indicate 
that the Petitioner's proposed work as a physical therapist has substantial merit, in determining 
national importance, the relevant question is not the importance of the field or profession in which the 
individual will work; instead we focus on the "the specific endeavor that the foreign national proposes 
5 
to undertake. "7 See Dhanasar, 26 I&N Dec. at 889. As explained in Dhanasar, "we look for broader 
implications" of the proposed endeavor and whether"[ a ]n undertaking may have 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. 
On appeal, the Petitioner states that she is '"superiorly qualified" as a physical therapist and plans to 
use her knowledge and experience to "enhance the Physical Therapy community in the U.S. and to be 
a contributing member of American society." The Petitioner states that in addition to the formal 
education she completed towards her degree in physical therapy, she also completed "intellectual 
courses" in the following: "Applied Physical Therapy in temporomandibular joint (TJM [sic]) 
disfunction," "Physical Therapy in TJM [sic] and Orthognathic postoperative surgeries, Pilates, 
"Global Postural Re-education," "I Meeting- Dry Needling," "lumbar segmental stabilization," and 
"[ m Jost common hospital handling clinical comorbidities with COVID-19 ." To the extent that the 
completion certificates for the three latter courses contain 2020 dates, these courses are not relevant 
for the purpose of establishing the Petitioner's eligibility at the time of filing, which took place in 2019 
and therefore predates the completion of the three courses and certifications received as a result of the 
completions. See 8 C.F.R. § 103 .2(b )(1 ). Although the record contains ce1iificates showing that the 
Petitioner also completed courses in TMJ, Pilates, and "Global Postural Re-education" prior to filing 
this petition, the additional knowledge, skills, and experience the Petitioner gained in her field as a 
result of these courses relate to the second prong of the Dhanasar framework, which "shifts the focus 
from the proposed endeavor to the foreign national." Id. at 890. 8 The issue here, however, is whether 
the specific endeavor that the Petitioner proposes to unde1iake has national importance under 
Dhanasar's first prong. 
The Petitioner further claims that using the skills she acquired through work experience and above­
listed courses will enable her to improve the quality of patients' lives "through the science" and to 
"help[] the economy to allocate less funds in the Medicare." However, the Petitioner does not offer 
specific examples of such impact on "the economy," nor does she provide evidence to demonstrate 
that her proposed endeavor has "broader implications" that will extend beyond the limited sampling 
of patients she intends to treat. 
Furthermore, the Petitioner has not demonstrated that the specific endeavor she proposes to undertake 
has significant potential to employ U.S. workers or otherwise offers substantial positive economic 
effects for our nation. Specifically, she has not shown that her work as a physical therapist stands to 
provide substantial economic benefits in Florida or the United States. Likewise, although the 
7 The issue here is not the value of physical therapy as an effective means of treatment and pain management, but rather 
whether the Petitioner's specific proposed endeavor as a physical therapist rises to the level ofnational importance. 
8 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing her expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered"in a given area of endeavor. By statute, individuals of 
exceptional ability are generally subject to the job offer/laborcetiification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver solely by 
demonstrating a degree of expertise significantly above that ordinarily encountered in her field of expertise. See DhanruYir, 
26 I&NDec. at 886 n.3. 
6 
Petitioner anticipates that she will benefit future employers by offering effective patient diagnosis and 
treatment, she has not demonstrated that these benefits will extend to the regional or national economy 
or that they would reach the level of "substantial positive economic effects" contemplated by 
Dhanasar . Id. at 890. 
To evaluate whether the Petitioner 's endeavor satisfies the national importance requirement we look 
to evidence documenting the "potential prospective impact" of her work. As discussed above, the 
Petitioner's evidence is insufficient to show that her proposed work has "broader implications" for her 
field or that its effects would extend beyond the specific patients she intends to treat at her prospective 
places of employment. In general, the value of qualified physical therapists to U.S. national healthcare 
initiatives is collective, and the Petitioner has not shown that her proposed work as a physical therapist 
stands to have wider implications in the field of physical therapy. 
In sum, the Petitioner's documentation is not sufficient to demonstrate that her proposed endeavor is 
of national importance under the Dhanasar framework. While we acknowledge the merits of her 
work , whose objective is to improve the quality of patients' lives while reducing rehospitalization 
incidents and prolonged use of opioids, the record does not demonstrate that the Petitioner's 
contribution will off er benefits that extend beyondherparticularpatients to impact the field of physical 
therapy more broadly . 9 According ly, the Petitioner 's proposed work does not meet the first prong of 
the Dhanasar framework . 
Because the documentation in the record does not establish the national importance of her proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of theDhanasar analytical framework, we conclude 
that he has not established that he is eligible for or that he otherwise merits a national interest waiver 
as a matter of discretion. 
ORDER: The appeal is dismissed. 
9 Likewise , in Dhanasar , we determined that the petitioner's teaching activities did not rise to the levelofhavingnafunal 
importance because they would notimpacthis field more broadly . Id. at 893 . 
7