Physical therapy: physical therapist assistant
The AAO dismissed the appeal because the Petitioner did not establish eligibility for EB-2 classification as an individual of exceptional ability, and so it did not reach the national interest waiver.
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Summary
A physical therapist assistant requested EB-2 classification as an individual of exceptional ability together with a national interest waiver, and the Texas Service Center Director denied the petition. The AAO reduced the number of satisfied categories by rejecting the license and association-membership findings, found experience and salary unproven, and then agreed that her expertise was not significantly above the norm. Unresolved inconsistencies about her work history hurt the credibility of her evidence. Because the underlying classification failed, the waiver was not examined and the appeal was dismissed.
Findings
| Criterion / prong | AAO finding | From the decision |
|---|---|---|
| Prong 1: Substantial merit and national importance | Not reached | |
| Prong 2: Well positioned to advance the endeavor | Not reached | |
| Prong 3: Balance favors waiving the job offer | Not reached |
Why the AAO decided this way
- The Director had accepted three evidentiary categories, but the AAO withdrew the findings on the license and professional membership categories because the Petitioner did not show that her occupation is a 'profession' as defined in the regulation, and it found the ten-years-of-experience and salary categories not met.
- On experience, the Petitioner's explanations did not sufficiently resolve inconsistencies in her employment history; even setting them aside, the letters did not show full-time experience in the occupation.
- The salary evidence did not show remuneration indicative of exceptional ability, since her earnings were lower than the national average cited and the comparison was not explained.
- In the final merits review the AAO agreed with the Director that she lacked expertise significantly above that ordinarily encountered in her field, noting that credibility was diminished by the unresolved discrepancies.
- Because the underlying classification was not established, the national interest waiver issues were reserved.
Authorities cited
- Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010)
- Matter of Christo's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015)
- Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016)
- Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023)
- Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988)
- Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971)
- Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)
- Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015)
- INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
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