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DismissedNational Interest Waiver · Appeal

Physician and entrepreneur

Clinical & health · decided 2023-08-18 · TSC · AUG182023_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 met
    Why
    Because the Petitioner has not established the national importance of her proposed endeavor as required by the first prong of the Dhanasar precedent decision, she has not demonstrated eligibility for a national interest waiver, as a matter of discretion.2 Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding the two remaining Dhanasar prongs. p. 2
  • 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 because the Petitioner has not established that her endeavor has national importance and thus, does not meet the first prong of the Dhanasar framework. See in text
  • ORDER: The appeal is dismissed. 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)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: AUG. 18, 2023 · In Re: 28051485 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver)

    The Petitioner, a physician and entrepreneur, seeks employment-based second preference (EB-2) 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 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, 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 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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal because the Petitioner has not established that her endeavor has national importance and thus, does not meet the first prong of the Dhanasar framework.

    After a petitioner fust 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 l&N Dec. 884, 889 (AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1 , 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 considered the Petitioner's claims under the three prongs of Dhanasar and determined that she only established the substantial merit of her proposed endeavor. Regarding national importance, the Director reviewed and analyzed the Petitioner's claims including her business plan 1 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). p. 2 with employment creation assertions, letters of support, and industry reports and articles and discussed their deficiencies. On appeal, the Petitioner submits a brief which generally reiterates the benefits of her profession, her qualifications, and the claimed economic impacts ofher proposed medical clinic(s) and contends that she has established the national importance ofher proposed endeavor. She does not, however, provide any new evidence or arguments which overcome the Director's determination. Therefore, we adopt and affirm the Director's decision as it relates to this prong. 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 of adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight U.S. Court of Appeals in holding the appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case). Because the Petitioner has not established the national importance of her proposed endeavor as required by the first prong of the Dhanasar precedent decision, she has not demonstrated eligibility for a national interest waiver, as a matter of discretion.2 Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments regarding the two remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). ORDER: The appeal is dismissed.