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DismissedNational Interest Waiver · Appeal

Physician and entrepreneur

Clinical & health · decided 2023-11-28 · TSC · NOV282023_03B5203

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
    Without further evidence as to the extent of research that the proposed endeavor would involve, or the specific research that the Petitioner intends to pursue, or its potential impact on the adoption and promotion of breastfeeding, the Petitioner has not established the national importance of her endeavor based upon this claim that she will engage in research. 4 p. 4
  • Prong 2Well positioned to advance itNot decided
    The Director's denial rested on this
    The Director similarly concluded that the Petitioner did not establish that she is well-positioned to advance the proposed endeavor nor that, on balance, waiving the job offer requirement would benefit the United States.2 1 See also Poursina v. p. 2
  • Prong 3Worth waiving the job offerNot decided
    The Director's denial rested on this
    The Director similarly concluded that the Petitioner did not establish that she is well-positioned to advance the proposed endeavor nor that, on balance, waiving the job offer requirement would benefit the United States.2 1 See also Poursina v. p. 2

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualifies for the EB-2 classification as an advanced degree professional but that the record did not establish that a waiver of the job offer requirement is in the national interest. See in text

What the AAO decided

Main reasons given

  • We therefore conclude that the Petitioner has not established that she is eligible for or otherwise merits a national interest waiver as a matter of discretion. See in text
  • Because the Petitioner has not established the national importance of her proposed endeavor as required by the first prong of the Dhanasar framework, she has not demonstrated eligibility for a national interest waiver. See in text
  • Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve our opinion regarding whether the record satisfies the second or third Dhanasar prongs. See in text
Show 3 more
  • The Petitioner has not met the national importance requirement of the first prong of Dhanasar. See in text
  • The issues on appeal are whether the Petitioner has established the proposed endeavor's national importance, whether she is well-positioned to advance the proposed endeavor, and whether, on balance, a waiver of the job offer requirement would benefit the United States. See in text
  • The Director also discussed the business plan and concluded that, while the organization may improve the welfare of its potential clients, the evidence did not demonstrate that the organization would enhance societal welfare on a level commensurate with national importance. See in text
Read the full decision (4 pages)

Objections found (6)

Automated tags. Each shows the sentence that triggered it.

  • Prong 1Proposed endeavor too vague
    But the articles and reports in the record were in fact discussed by the Director, with the Director concluding that they relate to the field in general and not to the Petitioner's specific, proposed endeavor. See in text (p. 3)
  • Prong 1Argued the field's importance, not the endeavor's
    Additionally, we agree with the Director that in determining whether a proposed endeavor has national importance, the relevant question is not the importance of the industry, field, or profession in which an individual will work; instead, to assess national importance, we focus on the "specific endeavor that the [noncitizen] proposes to undertake." See in text (p. 3)
  • Prong 1Job creation or economic claims unsupported
    The Director also noted that the business plan does not provide specific estimates for potential job creation or other financial projections. See in text (p. 2)
  • Prong 1Relied on a labor shortage
    In concluding that the Petitioner did not establish the national importance of the proposed endeavor, the Director acknowledged that the Petitioner's intent is to broadly impact the field by "foster[ing] the increased adoption of breastfeeding and healthy eating habits to improve childhood nutrition," but concluded that the evidence did not establish that the proposed endeavor stands to have an impact beyond the proposed organization itself The Director discussed the Petitioner's personal statement, the reports and articles submitted, and the letters of recommendation submitted, and concluded … See in text (p. 2)
  • Prong 2Support letters generic or unsupported
    In concluding that the Petitioner did not establish the national importance of the proposed endeavor, the Director acknowledged that the Petitioner's intent is to broadly impact the field by "foster[ing] the increased adoption of breastfeeding and healthy eating habits to improve childhood nutrition," but concluded that the evidence did not establish that the proposed endeavor stands to have an impact beyond the proposed organization itself The Director discussed the Petitioner's personal statement, the reports and articles submitted, and the letters of recommendation submitted, and concluded … p. 2
  • Prong 3Did not show the waiver outweighs labor certification
    The Director similarly concluded that the Petitioner did not establish that she is well-positioned to advance the proposed endeavor nor that, on balance, waiving the job offer requirement would benefit the United States.2 1 See also Poursina v. See in text (p. 2)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (2) AAO finding (6) Tagged objection (5)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: NOV. 28, 2023 · In Re: 28962835 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, a physician and entrepreneur, seeks classification as a member of the professions holding an advanced degree. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest waiver of the job offer requirement attached to this EB-2 classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national interest to do so.

The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualifies for the EB-2 classification as an advanced degree professional but that the record did not establish that a waiver of the job offer requirement is 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 Christa '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.

Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an individual of exceptional ability, the petitioner must then establish eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither statute nor the pertinent regulations define the term "national interest," Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national p. 2 interest waiver pet1t10ns. Dhanasar states that USCIS may, as a matter of discretion, 1 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.

Analysis

The Director found that the Petitioner qualifies for the EB-2 classification as an advanced degree professional based upon her title of physician degree from Venezuela. The Director also concluded that the Petitioner established the substantial merit of the proposed endeavor. The issues on appeal are whether the Petitioner has established the proposed endeavor's national importance, whether she is well-positioned to advance the proposed endeavor, and whether, on balance, a waiver of the job offer requirement would benefit the United States.

As to the proposed endeavor, the Petitioner states that she will work to promote breastfeeding. The Petitioner states that as part of this endeavor she will educate, train, and support mothers in breastfeeding; she will engage in the research, publication, and presentation of information regarding breastfeeding; and that she will establish a non-profit organization that will promote breastfeeding. In concluding that the Petitioner did not establish the national importance of the proposed endeavor, the Director acknowledged that the Petitioner's intent is to broadly impact the field by "foster[ing] the increased adoption of breastfeeding and healthy eating habits to improve childhood nutrition," but concluded that the evidence did not establish that the proposed endeavor stands to have an impact beyond the proposed organization itself The Director discussed the Petitioner's personal statement, the reports and articles submitted, and the letters of recommendation submitted, and concluded that these documents primarily describe the importance of breastfeeding in general and the problem of physician shortages in the United States, rather than establishing the importance of the Petitioner's specific endeavor.Relied on a labor shortage The Director also discussed the business plan and concluded that, while the organization may improve the welfare of its potential clients, the evidence did not demonstrate that the organization would enhance societal welfare on a level commensurate with national importance.

The Director also noted that the business plan does not provide specific estimates for potential job creation or other financial projections.Job creation or economic claims unsupported The Director concluded that the plan therefore did not establish the level of substantial positive economic effects contemplated by Matter ofDhanasar. The Director similarly concluded that the Petitioner did not establish that she is well-positioned to advance the proposed endeavor nor that, on balance, waiving the job offer requirement would benefit the United States.2Did not show the waiver outweighs labor certification

On appeal, the Petitioner contends that the Director's analysis ofthe first prong is contrary to precedent case decisions and the USCIS Policy Manual. Specifically, the Petitioner claims that the Director did not consider the totality of the evidence in the record, did not sufficiently explain the reasons for the denial, and did not explain the record deficiencies in a manner that provided an opportunity for the Petitioner to rectify those deficiencies. The Petitioner claims that the Director failed to consider the "ample objective, documentary evidence" that demonstrates the national importance of the endeavor. The Petitioner specifically points to the articles submitted that discuss the benefits of breastfeeding, the shortage of physicians the United States, and the infant formula shortage and related initiatives from the U.S. government. Finally, the Petitioner claims that the endeavor does stand to have positive economic effects and that the Petitioner's personal statements contain "ample arguments supported by objective documentary evidence" which establish this claim.

In determining whether a proposed endeavor has national importance, we consider its potential prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. An endeavor that has national or global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances, may have national importance. Id. Additionally, an endeavor that is regionally focused may nevertheless have national importance, such as an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area. Id. at 890.

Although the Petitioner claims that the Director did not sufficiently explain the basis for denial, upon de novo review we conclude that this claim is not supported by the record. Rather, the Director's decision cites to specific information in the record and includes findings that are well-supported by the language of Matter ofDhanasar. Similarly, as to the Petitioner's claim that the Director did not consider all of the evidence in the record, the Petitioner does not support this claim with sufficient specificity. The only specific example the Petitioner provides on appeal of evidence that the Director did not consider are the articles and evidence related to breastfeeding in general, physician shortages, and the infant formula shortage. But the articles and reports in the record were in fact discussed by the Director, with the Director concluding that they relate to the field in general and not to the Petitioner's specific, proposed endeavor.Proposed endeavor too vague Additionally, we agree with the Director that in determining whether a proposed endeavor has national importance, the relevant question is not the importance of the industry, field, or profession in which an individual will work; instead, to assess national importance, we focus on the "specific endeavor that the [noncitizen] proposes to undertake."Argued the field's importance, not the endeavor's See id. at 889. Moreover, the Petitioner does not address this finding on appeal or explain how her specific endeavor would increase the practice of breastfeeding, reduce the physician shortage, or reduce the infant formula shortage at a level commensurate with national importance.

We do note that the Director did not specifically discuss the Petitioner's statement that she will conduct research as part of her proposed endeavor and whether this helps establish the endeavor's national importance. Evidence of engaging in original research may help demonstrate an endeavor's national importance, as the findings of that research may be disseminated through the field and may result in a broad impact. See id. at 891-92. However, the Petitioner does not claim on appeal that her proposed endeavor involves research and does not assert that the Director erred by not discussing this aspect of her proposed endeavor. We therefore consider the issue to be waived. See, e.g., Matter of O-R-E-, p. 4 28 I&N Dec. 330, 336 n.5 (BIA 2021) (citing Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). 3

The Director's decision reviewed, discussed, and analyzed the Petitioner's documentation consistent with our precedent decision in Matter ofDhanasar. On appeal, rather than specifically identifying any errors in law or fact in the decision, the Petitioner merely makes broad, general assertions that the Director did not properly analyze the evidence and that she has established eligibility. These assertions, however, are not supported by the record, do not overcome the basis for the denial, and are insufficient to establish the Petitioner's eligibility for a national interest waiver.

Because the Petitioner has not established the national importance of her proposed endeavor as required by the first prong of the Dhanasar framework, she has not demonstrated eligibility for a national interest waiver. Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby reserve our opinion regarding whether the record satisfies the second or third Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where the applicant is otherwise ineligible).

Conclusion

The Petitioner has not met the national importance requirement of the first prong of Dhanasar. We therefore conclude that the Petitioner has not established that she is eligible for or otherwise merits a national interest waiver as a matter of discretion.

ORDER: The appeal is dismissed.