The Petitioner 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, concluding that the Petitioner qualified 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.
On appeal, the Petitioner submits additional documentation and a briefasserting that she is eligible for a national interest waiver. In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 ; Matter ofChawathe, 25 l&N Dec. 369, 375 (AAO 2010). 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. 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. - p. 2 (A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or 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) Waiver ofjob 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, arts, professions, or business be sought by an employer in the United States.
While neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 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.
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 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 United States to waive the requirements of a job offer and thus of a labor certification. In performing 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 a job offer or for the petitioner to obtain a labor certification; whether, even assuming See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
Dhanasar states that after a petitioner has established In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). p. 3 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 warrant forgoing the labor certification 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 degree. The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest.
The Petitioner indicated that she intends to start a physical therapy business which "will perform all types ofprescribed physical therapy at our clinic or in a patient's home" and "also offer fall prevention therapy to people over 55 that struggle with balance" in Florida. Although the Petitioner's statements reflect her intention to provide valuable physical therapy services for her future clients, for the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated the national importance of her proposed endeavor under the first prong of the Dhanasar analytical 4 framework.
On appeal, the Petitioner claims that her proposed endeavor is of national importance and "stands to produce benefits beyond the company's prospective patients, employees, and group class participants" generally because of "the importance of healthcare and physical therapy, coupled with the shortage of professional[s] in that field[,] as well as an excess expenditure ofpeople with physical therapy problems."
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 "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. We further noted that "we look for broader implications" of the proposed endeavor and that "[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. It is important to note that the shortage ofphysical therapists in the United States does not render her proposed endeavor nationally important under the Dhanasar framework. In fact, such shortages of qualified workers are directly addressed by the U.S. Department of Labor through the labor certification process.
The Petitioner presented a business plan, including such information as a description of the proposed company and its services, a market analysis, the projected profit and loss, and its marketing and sales strategies. Regarding future staffing, the Petitioner's business plan anticipates that it will have "14 employees in our first year," including physical therapists, physical therapy aides and office personnel, 5 to waive the requirements of a job offer and thus of a labor certification.
Analysis
and "will grow to 19 employees by Year 5."
In addition, the plan projects $789,000 to be paid in the calculators, [her] endeavor will create 13.5 jobs in the first year of operation[,] growing to 34 jobs in the fifth year." See Dhanasar, 26 I&N Dec. at 888-91 , for elaboration on these three prongs.
While we may not discuss every document submitted, we have reviewed and considered each one. The Petitioner also provides infonnation regarding regional input-output multipliers (RIMS) and states that, "[b]ased on p. 4 Federal, State, and payroll taxes in the next five years. The Petitioner also references the high cost of "treating fall injuries," but acknowledges that she "cannot quantify exactly how much the government will save because of [her] endeavor."
In this matter, 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 as contemplated by Dhanasar.Job creation or economic claims unsupported While we may agree with the Petitioner's statements that "'significant potential to employ U.S. workers' is not the same as a 'potential to employ a significant number of U.S. workers,"' and that "[e]vidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor's merit may be established without immediate or quantifiable economic impact," it is important to acknowledge that Dhanasar provided examples such as "endeavors related to research, pure science, and the furtherance of human knowledge" which "may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States." The Petitioner has not demonstrated that her proposed physical therapy company is similar to any of the listed endeavors, such that she would meet the national importance portion of the first prong.
The Petitioner also has not shown that her company's projected future staffing levels stand to provide substantial economic benefits to Florida or the United States. Although the Petitioner asserts that her company will hire U.S. employees, she has not established that the area where the company will operate is economically depressed, that she would employ a significant population of workers in that area, or that her endeavor would offer the region or its population a substantial economic benefit through employment levels or business activity. Further, while she indicates that the company has growth potential, the Petitioner has not demonstrated that benefits to the regional or national economy resulting from the Petitioner's undertaking would reach the level of"substantial positive economic effects." Id. at 890. For example, the Petitioner has not demonstrated that the projected taxes to be paid in the next five years will substantially affect either Florida's or the United States' tax revenue. or the U.S. or Florida economy more broadly at a level commensurate with national importance. For all of these reasons, the record does not establish that, beyond the benefits provided to its clients and employees, the Petitioner's proposed endeavor stands to have broader implications rising to the level of having national importance or that it would offer substantial positive economic effects.No broader implications shown
Since this issue is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments regarding the remaining issue. 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).
Conclusion
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude that she has not established she is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.