The Petitioner, an entrepreneur in aesthetic and cosmetic nursing, seeks employment-based second preference (EB-2) immigrant classification as a member ofthe professions holding an advanced degree as well as a national interest waiver of the job offer requirement attached to this 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 record did not establish that the Petitioner is eligible for or otherwise merits a national interest waiver as a matter of discretion. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof 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 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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. Section 203(b )(2)(B)(i) of the Act. "Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. 8 C.F.R. § 204.5(k)(2). A U.S. baccalaureate degree or a foreign equivalent degree followed by five years ofprogressive experience in the specialty shall be considered the equivalent of a master's degree. Id.
"Profession" means one of the occupations listed in section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 1 as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(2).
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an individual of exceptional ability, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, grant a national interest waiver if the petitioner demonstrates that:
- 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.
Id.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range ofareas, 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. Id.
The second prong shifts the focus from the proposed endeavor to the individual. To determine whether they are well positioned to advance the proposed endeavor, we consider factors including, but not limited to: their 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. Id. at 890. The third prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the individual's qualifications or the proposed endeavor, it would be impractical either for them to secure a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from their contributions; and whether the national interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, establish that on balance, it would be beneficial to the United States to waive the requirements ofa job offer and thus of a labor certification. Id. at 890-91.
Analysis
The Petitioner proposed to work in the United States as an entrepreneur in the field of aesthetic and cosmetic nursing. Specifically, she intends to own and operate a medical clinic in I New York, that will provide specialized cares for patients with skin lesions of arterial or 2 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary in nature).
I p. 3 venous origin, peeling treatments, tattoo removals, diabetic foot treatments, home care treatments, including at-home nursing consultations, dressings, bum treatments, and stoma bag changes, and will offer basic dressing change courses and teleconsultations.
As indicated above, the 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. Section 203(b )(2)(B)(i) of the Act. The Director determined that the Petitioner is eligible for the EB-2 classification as a member of the professions holding an advanced degree, and we agree.
The remaining issue on appeal is whether the Petitioner is eligible or otherwise merits a waiver of that classification's job offer requirement. We conclude that she is not. While we may not address each piece of evidence individually, we have reviewed and considered each one.
The Director determined that the Petitioner's proposed endeavor to work as a registered nurse and an entrepreneur in the field of aesthetic and cosmetic nursing has substantial merit. But the Director determined that the Petitioner has not established that her proposed endeavor is ofnational importance, that she is well positioned to advance the proposed endeavor, and that, on balance, it would be beneficial to waive the requirements of a job offer, and thus of a labor certification.Did not show the waiver outweighs labor certification
On appeal, the Petitioner asserts that she intends to work autonomously through her company and this ensures a positive impact on the U.S. job market, rendering a job offer unnecessary. In addition, the Petitioner contends that the Director abused discretion by failing to exercise due diligence in reviewing the evidence submitted and that the Director's failure to recognize the national significance of her proposed endeavor by neglecting the evidence submitted is an adjudication error and a clear arbitrary exercise of discretion. The Petitioner also contends that the Director claimed lack of evidence on economic impact, but she submitted documentation to establish economic benefits at the time of filing her petition and in response to a request for evidence.Job creation or economic claims unsupported
The Petitioner claimed that her proposed endeavor has both substantial merit and national importance because nursing professionals play a vital role in ensuring access to health services and because her professional achievements will benefit the U.S. nation and satisfy goals given by government agencies. The Petitioner further stated that a study published in the American Journal of Public Health underscores the importance of public health in prevention and reducing disparities in access to healthcare. The Petitioner asserts that as a nurse specializing in aesthetic and cosmetic nursing she can contribute to public health in the United States. To support this claim, the Petitioner submitted various articles, industry reports, and four executive orders relating to prevention, health promotion, and public health.
The articles and industry reports provide general information regarding aesthetic nursing, nurse educators, healthcare spending, healthcare occupations, registered nurses, diabetes care, and nursing entrepreneurship, and support the importance of nursing professionals and public health. However, in determining national importance, the relevant question is not the importance of the industry or profession in which the individual will work. Instead, we focus on the specific endeavor that the foreign national proposes to undertake. See Dhanasar, 26 I&N Dec. at 889. As such, the Petitioner p. 4 must demonstrate by a preponderance of the evidence that her proposed endeavor to work as an entrepreneur in the field of aesthetic and cosmetic nursing is of national importance.
In Dhanasar, we indicated that we look for broader implications of the proposed endeavor and that an undertaking may have national importance, for example, because it has national or even global implications within a particular field. See id. at 889. While we acknowledge the importance ofnursing professionals and public health, the Petitioner has not shown that her proposed endeavor would impact the field ofaesthetic and cosmetic nursing more broadly rather than benefiting her patients at the clinic. While we acknowledge the Petitioner's claims, she has not provided sufficient evidence to substantiate them. The articles and industry reports record do not explain how the Petitioner's proposed endeavor to establish a wound care clinic and provide wound care treatment and care and other medical services to her patients will have broader implications in the nursing and healthcare industry. Moreover, the executive orders may support the importance ofpublic health and access to healthcare, but they do not indicate that the government has an interest in her proposed endeavor to work as an entrepreneur in the field of aesthetic and cosmetic nursing.No interest from users, customers or investors The Petitioner has not otherwise provided sufficient information and evidence to demonstrate the prospective impact of her proposed endeavor rises to the level of national importance. Without sufficient documentary evidence of its broader impact, the Petitioner's proposed business activities do not meet the national importance element ofthe first prong of the Dhanasar framework.No broader implications shown
The Petitioner contended that she would contribute to the nursing workforce due to the lack of professionals and the need for healthcare professionals specialized in would care and diabetes. The Petitioner stated that according to a report from the American Association of Colleges of Nursing, a shortage ofnurses in the United States is projected to grow in the coming years. The Petitioner further stated that the U.S. Department of Labor acknowledges this shortage and indicated that the unprecedented demands that the COVID-19 pandemic has placed on nurses, combined with retirements and an aging workforce, have significantly increased the need for nursing workers in the United States. To support this claim, the Petitioner provided various articles and an economic impact study.
While we acknowledge a shortage of nurses in the United States, the U.S. Department of Labor addresses worker shortages through the labor certification process, and, therefore, a shortage of qualified professionals alone is not sufficient to demonstrate eligibility for the national interest waiver. See id at 885.
In addition, the Petitioner stated that she plans to share her knowledge with her patients, students, colleagues, American nurses, and healthcare workers. However, the record does not sufficiently show that this undertaking has broader implications for her field, as opposed to being limited to those who participate in her lectures or training courses. While the Petitioner's plan to share her knowledge with her patients, students, colleagues, nurses, and other healthcare workers has merit, the record does not sufficiently demonstrate that her teaching or instructional activities offers benefits that extend beyond her students or trainees to impact the field of aesthetic and cosmetic nursing or the nursing and healthcare industry more broadly. Likewise, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893.
I
As for the economic value and job creation the Petitioner asserts her clinic will offer, the Petitioner stated that she plans to start her clinic with one nurse and then have a larger team by the end of the year as sales increase and demands for her clinic's services grow. The business plan ofl Wound Care Clinic projects annual revenue of$760,354 to $1,140,532 and a net profit of$431,181 to $676,132. The economic impact study claims that the Petitioner's proposed endeavor will directly benefit a wide range of patients and various nursing and healthcare organizations and indirectly influence diverse fields, such as real estate, rental and leasing, finance and insurance, professional, scientific, and technical services, administrative support, waste management, and remediation services. The economic impact study asserts that the Petitioner's clinic is expected to generate an output of $1,816,962 to $5,450.888, earnings of $707,510 to $2,122,530, and 36.37 jobs in the first year, 45.05 jobs in the fifth year, and a total of 202.97 jobs over the five years for every $1,000,000 invested.
However, the Petitioner has not explained the bases for the economic projections in the business plan and the economic analysis, nor does the record contain evidence supporting these claims. The preponderance of the evidence standard requires that the evidence demonstrate that the petitioner's claim is probably true, where the determination of truth is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, truth is to be determined not by the quantity of evidence alone but by its quality. See id. Here, lack of supporting details detracts from the credibility and probative value of the business plan and economic impact study.
Furthermore, even if all the projections in the business plan and economic impact study were realized, the record lacks sufficient evidence demonstrating that the Petitioner's clinic will have an impact on the field of aesthetic and cosmetic nursing or the nursing and healthcare industry at a level commensurate with national importance.Plan or projections not corroborated In Dhanasar, we stated that an endeavor that has a 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. See Dhanasar, 26 I&N Dec. at 890. The Petitioner has not offered sufficient evidence that her clinic will employ a significant population of workers in an economically depressed area or that her endeavor would offer a particular U.S. region or its population a substantial economic benefit through employment levels or business activity. The Petitioner has not otherwise provided sufficient information and evidence to demonstrate the prospective impact of her proposed endeavor rises to the level of national importance. Accordingly, the record does not sufficiently demonstrate that the Petitioner's proposed endeavor is of national importance.
Lastly, the Petitioner claimed that she can help develop the American nursing field because she possesses experience and skills as a nurse entrepreneur in aesthetics in wound treatment and care and because as a nurse specialist in aesthetic and cosmetic nursing, she has played a leadership role in planning, managing, and executing individual and collective health actions. The record includes the Petitioner's graduation certificate, nursing diploma, certificates for health systems and hospitals management program and other courses or training, school transcripts, resume, employment verification letters from her former employers, nursing license in Brazil, and recommendation letters from her former patient and colleagues. While we acknowledge the Petitioner's claims, the Petitioner's education, training, work experience, professional achievements, and past contributions p. 6 to her former employers are relevant under the second prong of Dhanasar to support the claim that that she is well positioned to advance the proposed endeavor. See id. at 890. The first prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. See id. at 889. We have reviewed and considered each piece of evidence, both individually and within the context of the totality of the evidence. We conclude that the Petitioner has not established by a preponderance of the evidence the national importance of her proposed endeavor for the reasons stated above.
Because the documentation in the record does not establish the national importance of her proposed endeavor required by the first prong of the Dhanasar precedent decision, the Petitioner has not demonstrated eligibility for a national interest waiver. Therefore, further analysis ofher eligibility under the second and third prongs outlined in Dhanasar would serve no meaningful purpose, and we will reserve these issues for future consideration should the need arise. 3
Conclusion
Although the Petitioner has shown that she is a member of the professions holding an advanced degree and that her proposed endeavor to work in the United States as an entrepreneur in the field of aesthetic and cosmetic nursing has substantial merit, she has not demonstrated by a preponderance of the evidence that her proposed endeavor is of national importance. Accordingly, the Petitioner has not established by a preponderance of the evidence that she is eligible for or otherwise merits a national interest waiver as a matter of discretion.
ORDER: The appeal is dismissed.