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 ofexceptional 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.
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 p. 2 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 ofthe 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 equivalentdegreeabovethatofbaccalaureate. AUnitedStatesbaccalaureatedegree or a foreign equivalent degree followed by at least five years ofprogressive 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 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 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of exceptional ability. USCTS Policy Memorandum, Evaluation o fEvidence 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).
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). meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 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).
Dhanasar, 26 I&N Dec. 884. may,asamatterofdiscretion,grantanationalinterestwaiverifthepetitionerdemonstrates: (1)that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that Dhanasar states that after EB-2 eligibility has been established, USCIS p. 3 I
Iin January2004and demonstrated that she had at least five years ofprogressivefull-time employment as a physical therapist when this petition was filed. 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 foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas 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.
Thesecondprongshiftsthefocusfromtheproposedendeavortotheforeignnational. Todetermine 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 UnitedStatestowaivetherequirementsofajobofferandthusofalaborce1iification. Inperforming 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 ajob 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 The Director found that the Petitioner qualifies as a member of the professions holding an advanced 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 to waive the requirements of a job offer and thus of a labor certification.
Analysis
The remaining issue to be determined is whether the Petitioner has established that a waiver degree. of the requirement of a job offer, and thus a labor certification, would be in the national interest. SeeDhanasar,26I&NDec.at888-91,forelaborationonthesethr,...e~en-r=o-n_gs~------------~ The Petitioner received a Bachelor of Physiotherapy degree froml , p. 4 treatments" and "[m]onitor and manage other therapists, assistants, and others involved in the diagnosis and recovery process." A. Substantial Merit and National Importance ofthe Proposed Endeavor In the denial, the Director determined that the Petitioner did not adequately explain her specific unde1iakingandthereforedidnotestablishtheexistenceofaproposedendeavor. Onthebasisofthis 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 In the Petitioner's "Professional Plan & Statement," she provided a review ofher professional histoty, w h i c h i n c l u d e d a l i s t o f h e r p r i o r e m p l o y e r s a n d t r e a t m e n t m e t h o d s s h e u s e d to t r e a t p a t i e n t s , i n c l u d i n g "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 andrheumatologicalailments. ThePetitioneralsoprovidedthefollowingdescriptionofherskillsin 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 herproposedendeavorhasnationalimportance. TheDirectorprovidedapotentiallistofdocuments 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 andreducinghealthcare costs associatedwith certain types ofinjuries. In sum, the submitted documentationsupports thePetitioner's claimthatherproposed endeavorhas substantialmerit. not demonstrate that her proposed endeavor is of national importance. discussed below, we conclude that the Petitioner did not meet the criteria of the first prong of the Dhanasar analytical framework.
While wemaynotdiscusseverydocumentsubmitted,wehavereviewedandconsideredeachone.
Therefore, for the reasons p. 5 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 endeavorto use her"expertise in physicaltherapy rehabilitation and managementto 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,useofopioids,andexcessiverecoverytimes. AlthoughthePetitionerclaimedthatthere is a "dire sh01iage" of physical therapists in the United States, one ofthe 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 competitiveeachyear." PhysicalTherapistJobsOutlook: A10YearForecastofMassiveGrowth, https://ptprogress.com/physical-therapist-jobs-outlook (last modified November 17, 2018). Fmihermore, even if the Petitioner was able to establish a shortage ofphysical 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 requirementofalaborcertificationwouldbenefittheUnitedStates. Moreover,noneofthedocuments 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 ofnational 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 nationalmeritatthetimeoffiling. Likewise,thePetitioner'sclaimthatsheisnow"intheprocessof 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 therapyinterventionandprolongeduseofopioidstomanagepain. Althoughthesedocumentsindicate that the Petitioner's proposed work as a physical therapist has substantial merit, in determining national importance, the relevant question is not the importance ofthe field or profession in which the individual will work; instead we focus on the "the specific endeavor that the foreign national proposes p. 6 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 "[mJost 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 ofestablishingthe Petitioner's eligibility at the time offiling, which took place in 2019 and therefore predates the completion ofthe three courses and certifications received as a result of the completions. See8C.F.R.§103.2(b)(1). Althoughtherecordcontainsce1iificatesshowingthatthe 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 ofthese courses relate to the secondprongofthe Dhanasar framework, which"shifts the focus 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[]theeconomytoallocatelessfundsintheMedicare." However,thePetitionerdoesnotoffer 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.Job creation or economic claims unsupported 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 Theissuehereis notthevalueofphysicaltherapyasaneffectivemeansoftreatmentandpainmanagement,butrather whether the Petitioner's specific proposed endeavor as a physical therapist rises to the level ofnational importance.
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 ofexpertise significantly above thatordinarily encountered"in a given area ofendeavor. By statute, individuals of exceptional ability are generally subject to the job offer/laborcetiification requirement; they are not exempt by virtue of theirexceptionalability. Therefore,whetheragivenpetitionerseeksclassificationasanindividualofexceptionalability, or as a member of the professions holding an advanced degree, that individual cannot qualify for a waiver solely by demonstratingadegreeofexpertisesignificantlyabovethatordinarilyencounteredinherfieldofexpertise. SeeDhanruYir, 26 I&NDec. at 886 n.3.
See Dhanasar, 26 I&N Dec. at 889. As explained in Dhanasar, "we look for broader to undertake." 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. from the proposed endeavor to the foreign national." Id. at 890. the specific endeavor that the Petitioner proposes to unde1iake has national importance under Dhanasar's first prong. The issue here, however, is whether
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 placesofemployment.No broader implications shown Ingeneral,thevalueofqualifiedphysicaltherapiststoU.S.nationalhealthcare 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 ofphysical 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 c o n t r i b u t i o n w i l l o f f e r b e n e f i t s t h a t e x t e n d b e y o n d h e r p a r t i c u l a r p a t i e n t s to i m p a c t t h e f i e l d o f p h y s i c a l 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.
Conclusion
As the Petitionerhas notmettherequisitefirstprongoftheDhanasaranalyticalframework, 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. therapy more broadly. the Dhanasar framework .
Accordingly, the Petitioner's proposed work does not meet the first prong of Likewise, in Dhanasar,we determined that the petitioner's teaching activities did not rise to the levelofhavingnafunal importancebecausetheywouldnotimpacthisfieldmorebroadly. Id.at893.