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DismissedNational Interest Waiver · Appeal

Self-employed diagnostic medical physics consultant

Clinical & health · decided 2023-04-14 · TSC · APR142023_04B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director ofthe Texas Service Center denied the petition, concluding that the Petitioner established she was an advanced degree professional, but had not demonstrated that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon de novo review, we will dismiss the appeal. See in text
  • Cir. 1997) (noting that the practice o f adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F3d 5, 8 (1st Cir. 1996) (joining eight U.S. Courts ofAppeals in holding that appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case.") ORDER: The appeal is dismissed. See in text

Main reasons given

  • But she does not provide any new evidence or arguments which overcome the Director's determination. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (2) AAO finding (1)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · In Re: 25733586 · Appeal ofTexas Service Center Decision · Non-Precedent Decision of the Administrative Appeals Office · Date: APR. 14, 2023 · Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver)

    The Petitioner, a nuclear medicine technologist and medical physicist who intends to "join[] a diagnostic medical physics residency program" and "[t]hen work as a self-employed diagnostic medical physics consultant," 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. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).

    The Director ofthe Texas Service Center denied the petition, concluding that the Petitioner established she was an advanced degree professional, but had not demonstrated that a waiver of the required job offer, and thus of the labor certification, would be 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 ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.

    After a petitioner first demonstrates qualification for the underlying EB-2 visa classification, they must then demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 1 provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , grant a national interest waiver if the petitioner shows:

    • 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.

    The Director reviewed and analyzed the Petitioner's claims under the three prongs of Dhanasar and determined that she only established the substantial merit of her proposed endeavor. On appeal, the 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).

    Petitioner submits a brief which generally reiterates the benefits of the medical physicist profession, her qualifications, and the impracticality of the labor certification process. But she does not provide any new evidence or arguments which overcome the Director's determination.

    Upon review ofthe entire record, we adopt and affirm the Director's decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997) (noting that the practice o f adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F3d 5, 8 (1st Cir. 1996) (joining eight U.S. Courts ofAppeals in holding that appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case.") ORDER: The appeal is dismissed.