The Petitioner, a nurse, 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 of the Texas Service Center denied the petition, concluding that the record did not establish the Petitioner's eligibility for the requested national interest waiver. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitioner bears the burden of proof 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. An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2).
Once a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship p. 2 and Immigration Services (USCIS) may, as matter of discretion1 , 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 determined that the Petitioner qualifies for the underlying EB-2 classification as an advanced degree professional. Therefore, the remaining issue is whether the Petitioner has established eligibility for a national interest waiver under the Dhanasar framework.
A. The Proposed Endeavor's Substantial Merit and National Importance
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Dhanasar, 26 I&N Dec. at 889. Id. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Id. We agree with Director's conclusion that the Petitioner's proposed endeavor, which aims to provide home health care to U.S. patients, has substantial merit. Yet, the record does not establish that the endeavor rises to the level of national importance as contemplated in Dhanasar.
The record reflects that the Petitioner is an accomplished nurse with experience in nursing care, coordination and leadership of nursing teams, patient-centered care, emergency response, and critical care. She intends to develop and expand her own home healthcare services company that will "specialize in offering home care services throughout the American territory, serving patients ... [ of] all ages (from children to elderly) with all conditions, focusing on eldercare, trauma, palliative care, disability care, and [care for] people diagnosed with occupational therapy needs." The Petitioner asserts her company will "enable the continuity of hospital treatment within the patient's residence, performed by a multi-professional team." The company will "exist as a multidisciplinary home care service for patients, their families, and caregivers, covering interventions and guidance related to physical, mental, and social health." The Petitioner also indicates that, beyond operating the company, she plans to market the business as a franchise model to expand the brand throughout the United States. The record includes a five-year business plan outlining the specific services the company would offer, which includes patient care from home health nurses, physiotherapists, speech therapists, occupational therapists, physicians (general and specialist), non-skilled home health care, and remote health monitoring.
In support of her endeavor, the Petitioner also provided a definitive statement, letters of recognition from prior colleagues attesting to her expertise in delivering care to patients and coordinating the work 1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be discretionary in nature). p. 3 of nursing teams, an expert opinion letter, and industry reports discussing the nursing field, the changing demands of the medical field in the United States, nursing shortages in the United States, and articles detailing the economic importance ofimmigrants and entrepreneurs to the U.S. economy. 2 The Director concluded that the record did not establish the Petitioner's endeavor would lead to broader implications in the field, beyond the direct benefit provided to her prospective patients, or otherwise result in economic benefits that would rise to the level of national importance.No broader implications shown On appeal, the Petitioner generally asserts that the Director did not apply the correct burden of proof and failed to properly consider the evidence establishing her credentials and experience in the field, the industry reports establishing the national importance of her endeavor and the shortage of professionals within her field, and the potential impact of her proposed endeavor. Generally relying on the same arguments previously put forth before the Director, she maintains that the evidence on record is sufficient to demonstrate that she meets all three prongs under the Dhanasar framework. Notably, the Petitioner also asserts for the first time that her endeavor will generate benefits "to the U.S. business and fashion industries, and [provide benefits] to the success of U.S. corporations." As the Petitioner does not provide additional support for how her home health services company will impact the fashion industry, nor was this previously claimed before the Director, we will not consider it for the first time here.
The standard of proof in this proceeding is preponderance of the evidence, meaning that a petitioner must show that what is claimed is "more likely than not" or "probably" true. Matter ofChawathe, 25 I&N Dec. at 375-76. To determine whether a petitioner has met the burden under the preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, and credibility) of the evidence. Id.; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). Upon de novo review of the record, we agree with Director's evaluation of the evidence, and conclude it does not establish, by a preponderance of the evidence, that the Petitioner's proposed endeavor of operating a home health care business has national importance as contemplated under the Dhanasar framework.
In Dhanasar we said that, in determining national importance, the relevant question is not the importance of the field, industry, or profession in which a petitioner may work; instead, we focus on "the specific endeavor that the foreign national proposes to undertake." Dhanasar at 889. We therefore "look for broader implications" of the proposed endeavor, noting 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 Notably, on appeal, the Petitioner continues to rely on the nursing field and the benefits ofhome health care in general to establish the national importance of her endeavor, but this misapplies the Dhanasar framework.Proposed endeavor too vague When evaluating national importance, the relevant question is not the importance of the industry or profession in which the individual will work; instead, we must focus on the "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. While 2 While we do not discuss each piece of evidence contained in the record individually, we have reviewed and considered each one. p. 4 we recognize the importance of the nursing field, the record does not establish that the prospective impact and broader implications of the Petitioner's proposed endeavor stand to rise to the level of national importance.
In her definitive statement, the Petitioner asserts that her endeavor is of national importance because it will alleviate a nationwide health care crisis by closing the gap in the availability of nursing health services. Specifically, the Petitioner states she will serve communities in the United States that do not have accessibility to visit health care professionals due to lack of insurance, residing in remote areas where there is a shortage of medical professionals, or because they face administrative hurdles at private practices that prohibit adequate patient care. However, the record does not establish how the Petitioner's endeavor will meet these goals. Notably, while the Petitioner's business plan indicates that the company will accept payment plans, she also states she will "accep[t] payments through health insurance, Medicare and Medicaid." Thus, it is unclear from the record how the Petitioner's endeavor will address the gap in treatment resulting from the lack of medical insurance, nor does the Petitioner elaborate on how payment plans will alleviate the cost burden resulting from a prospective patient's lack of insurance. Likewise, the Petitioner asserts her proposed endeavor "responds to a national shortage of trained, and capable, field professionals," and relies on the shortage to establish the national importance of her endeavor. Yet, the Petitioner offers no explanation as to how, given the stated shortage, the Petitioner would be able to employ five part-time nurses and five full-time physicians, along with several specialist medical professionals within the first five years ofoperations. Moreover, even if the Petitioner proposed to seek out a population without insurance and offer more affordable care to alleviate the cost burden addressed, the prospective impact of those services would be limited to her prospective patients and would not result in broader implications commensurate with national importance.Benefits limited to an employer or its clients In the same way teaching activities proposed by the petitioner in Dhanasar were not shown to have a broader impact on the field of STEM education, activities which only benefit the Petitioner's prospective patients, like the offerings outlined in the business plan, would not have broader implications in the field rising to the level of national importance.Past record does not show influence or success Id.
Similarly, the expert opinion letter and articles containing background information on the health care field, aging populations in the United States, and the nursing shortage in particular, are likewise insufficient to demonstrate the national importance ofthe Petitioner's company. Identifying a shortage of qualified professionals or establishing an industry need does not necessarily render the work of an individual endeavor nationally important under the Dhanasar precedent decision. Several of the Petitioner's claims of national importance could reasonably apply to any nurse or medical professional. Moreover, the Department of Labor's (DOL) Schedule A designation of nurses under its regulation at 20 C.F.R. § 656.16 allows U.S. employers to petition for noncitizen workers without first following the regulatory steps to test the labor market prior to filing a permanent labor certification. See 20 C.F.R. § 656.17. Filing a permanent labor certification under Schedule A requires a job offer from a U.S. employer, as the recognized benefit is to that of the employer, not necessarily to a broader U.S. interest.
Additionally, while we recognize the Petitioner has had a long-standing career as a nurse, and has developed knowledge critical to the nursing field, her expertise and record of success in previous positions are considerations under Dhanasar 's second prong, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. The issue here is whether the Petitioner has p. 5 demonstrated, by a preponderance of the evidence, the national importance of her proposed work, and we conclude that she has not shown that the prospective impact of her proposed endeavor, however admirable, rises to the level of national importance.
We also reviewed the expert opinion letter from Dr. P-B-, and conclude it offers little additional explanation to establish the national importance of the Petitioner's proposed endeavor. Dr. P-B- does not discuss the direct prospective impact of the Petitioner's proposed endeavor or of the offerings outlined in her business plan. Instead, they focus primarily on the importance ofthe nursing and health care fields, noting "it is obviously in the national interest to ensure that Americans are able to access lifesaving and emergency and preventative care," while offering no analysis or input into the broader implications of the Petitioner's specific endeavor. Dr. P-B does not discuss the Petitioner's company at all, stating only that she "intends to continue using her extensive knowledge ofthe safe and efficient administration of health care in order to treat patients across the country." USCIS may, in its discretion, use as advisory opinions statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible for making the final determination regarding a noncitizen's eligibility. The submission ofletters from experts supporting the petition is not presumptive evidence of eligibility. Id., see also Matter ofD-R-, 25 I&N Dec. 445,460 n.13 (BIA 2011) ( discussing the varying weight that may be given expert testimony based on relevance, reliability, and the overall probative value). Here, much of the content of the expert opinion letter lacks relevance with respect to the national importance of the Petitioner's proposed endeavor. Likewise, the Petitioner's additional claim that her company "is poised to make a significant positive economic impact" is not persuasive. According to her business plan, the Petitioner anticipates that, by the fifth year of operations, her company will have an annual revenue of $5,411,437.50 resulting in an annual federal tax payment of $356,146.17. She also indicated that, in that same time, the company will directly employ 66 employees, and generate an additional 330 indirect jobs. Notably, the Petitioner provides no explanation for the basis ofthese revenue and employment projections. Yet, even if the endeavor's revenue and job creation projections were more than conjecture, they do not establish that the endeavor would operate on a scale rising to the level of national importance, as the Petitioner has not explained how these proposed employment numbers and revenue will impact the area of intended operations, nor has she provided evidence that her business operations will impact an economically depressed area. Furthermore, the Petitioner relies on a report on "employment multipliers" published by the Economic Policy Institute in 2019 to support her assertion of the indirect employment resulting from her company's operations; however, the excerpt of the report discusses employment in industries "that are heavy users of materials" from other suppliers in the region. The Petitioner has not explained how this operational impact is relevant to her home health care services company. While any basic economic activity has the potential to positively impact the economy, the Petitioner has not demonstrated how the projected economic activity of her proposed endeavor rises to the level of national importance.
We also note that the Petitioner indicated that she plans to initially operate her business from Massachusetts which is designated as a Small Business Administration HUBZone and asserts her business operations will result in "improvement of the wages and the working conditions for U.S. workers, and hel[p] the local community bring investments to the region." However, the record does not contain evidence establishing the company's physical location. Not only has the Petitioner not p. 6 offered sufficient evidence that her business will in fact be in a HUBZone, but more importantly, she has not established that she would qualify 3 for the program. Moreover, the record does not show that the prospective employment in this designated underutilized business zone would have positive economic effects commensurate with national importance. Dhanasar, 26 I&N Dec. at 890. For example, the Petitioner does not explain how the proposed employment of five full-time physicians with an annual salary of $85,000 or five part-time nurses earning an annual salary of $35,000 would result in the "improvement of wages and the working conditions for U.S. workers" as claimed. Generalized conclusory statements that do not identify a specific impact have little probative value. See 1756, Inc. v. US. Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions in immigration benefits adjudications).
For the reasons discussed, the Petitioner has not demonstrated that her proposed endeavor would be of national importance, and she therefore does not meet the requirements of the first prong of the Dhanasar analytical framework.
B. Well-Positioned to Advance the Proposed Endeavor
Since the Petitioner did not demonstrate the national importance of her proposed endeavor, the resolution of that issue by itselfrequires dismissal of her appeal. But because the Director's decision made specific conclusions about the Petitioner's eligibility under Dhanasar 's second prong, we will discuss whether the Petitioner is well-positioned to advance the proposed endeavor.
The Director concluded the Petitioner was well-positioned to advance the proposed endeavor, noting that "the record identifies the beneficiary's education, more than 15 years of experience, business plan, letters ofsupport, nursing license and certification." Upon de novo review, we withdraw the Director's conclusion.
In evaluating whether a petitioner is well-positioned to advance their proposed endeavor under the second prong of Dhanasar, we review (A) a petitioner's education, skill, knowledge, and record of success in related or similar efforts; (B) a petitioner's model or plan for future activities related to the proposed endeavor that the individual developed, or played a significant role in developing; (C) any progress towards achieving the proposed endeavor; and (D) the interest or support garnered by the individual from potential customers, users, investors, or other relevant entities or persons. While we recognize that the Petitioner's education, experience, and letters of recommendation demonstrate her extensive experience in the field offamily health, coordinating and directing the work of nurses, and leading several vaccination campaigns on behalf of the government, simply having education, skills, and/or knowledge in isolation do not place a petitioner in a position to advance their proposed endeavor. Additionally, while the Petitioner provided a copy of her application submitted to the Commission on Graduates of Foreign Nursing Schools (CFGNS) to obtain her Massachusetts nursing license, the Petitioner has not provided evidence that she has obtained this license, contrary to the Director's conclusion.
Moreover, the Petitioner has not carried her burden in establishing that her prior experience working in nurse management positions makes her well-positioned to create and operate her home health care company, nor has she provided any evidence to establish she has taken steps to incorporate the company. Similarly, the record does not establish the Petitioner's ability to begin operations. According to the business plan, the Petitioner will provide 50% of the initial $100,000 investment necessary to begin operations, and her brother, Mr. W-L-, will provide the remaining $50,000. The record contains a letter from Mr. W-L- confirming his intention "to invest $50,000 in the business in the first year," along with evidence of a commercial line of credit issued to Mr. W-L-'s private company in the amount of $50,000. The record does not contain evidence of the Petitioner's ability to invest the remaining $50,000, nor is Mr. W-L-' s letter of intent legally binding. As such, the record does not corroborate the Petitioner has obtained the necessary investment.No interest from users, customers or investors
So, the Petitioner has not demonstrated with sufficient material, relevant, and probative evidence that they are well-positioned to advance their proposed endeavor.
Conclusion
As the Petitioner has not met the requisite first or second prongs of the 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. Since the identified reasons for denial are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's eligibility under Dhanasar's third prong. See INS v Bagamasbad, 429 U.S. 24, 25 ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reached"); 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.