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RemandedNational Interest Waiver · Appeal

Physical therapist

Clinical & health · decided 2021-08-11 · TSC · AUG112021_01B5203

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 proceeded to conduct a Dhanasar analysis without first concluding whether the Petitioner qualifies for a second preference classification 1 While we conduct de nova review on appeal, we conclude that a remand is warranted in this case because the Director's decision is insufficient for review. See in text

What the AAO decided

  • Accordingly, the matter will be remanded to the Director to conduct a final merits determination of the advanced degree issue and enter a new decision. See in text
  • ORDER: The decision of the Director is withdrawn. See in text
  • The matter is remanded for further proceedings consistent with the foregoing analysis and entry of a new decision. See in text
Read the full decision (1 page)

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 (3)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · In Re: 13904096 · Appeal of Texas Service Center Decision · Non-Precedent Decision of the Administrative Appeals Office · Date: AUG. 11, 2021 · Form 1-140, 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, 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 ofthe Texas Service Center denied the petition, noting that "[a]fter the [P]etitioner has established ... eligibility for second preference classification under section 203(b)(2)(A) ofthe [Act], [U.S. Citizenship and Immigration Services] may grant a national interest waiver if the [P]etitioner demonstrates by a preponderance of evidence that [the criteria established in Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016), have been satisfied]." The Director proceeded to conduct a Dhanasar analysis without first concluding whether the Petitioner qualifies for a second preference classification While we conduct de nova review on appeal, we conclude that a remand is warranted in this case because the Director's decision is insufficient for review. As presently constituted, the record does not establish whether the Petitioner qualifies as a member of the professions holding an advanced degree. See section 203(b)(2) of the Act.

    Accordingly, the matter will be remanded to the Director to conduct a final merits determination of the advanced degree issue and enter a new decision. The Director may request any additional evidence considered pertinent to the new determination and any other issue. As such, we express no opinion regarding the ultimate resolution of this case on remand.

    ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing analysis and entry of a new decision.

    Similarly, in a prior request for evidence (RFE), the Director noted that "[i]n order to establish eligibility, the [P]etitioner must establish that ... [she] qualifies for the requested classification; and [a]n exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States." However, the Director did not comment in the RFE whether the Petitioner qualifies for the requested second preference classification. as a member o f the professions holding an advanced degree.