dismissed EB-2 NIW Case: Adapted Physical Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 13, 2023 In Re : 27461722 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an adapted physical education specialist /entrepreneur, seeks second preference 
immigrant classification as a member of the professions holding an advanced degree or as an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this EB-2 classification. 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 the Petitioner had not 
established for a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for a national interest waiver, petitioners must 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. In addition, 
petitioners must show they merit a discretionary waiver of the job offer requirement "in the national 
interest." Section 203(b )(2)(B)(i) of the Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) 
provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion 1, grant 
a national interest waiver if petitioners show: 
• 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. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
II. ANALYSIS 
As indicated above, the first prong for a national interest waiver relates to substantial merit and national 
importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Petitioner initially 
provided a "Definitive Statement" claiming: 
I intend to continue using my expertise and knowledge to work as an Adapted Physical 
Education Specialist/Entrepreneur and contribute to the U.S. economy, and its societal 
welfare, through the development and expansion ofmy already registered U.S. company, 
I I The business is a wellness center 
focused on combating obesity across the children and adult populations in the U.S. 
Explicitly, it is healthcare and aquatic fitness center that will facilitate and promote the 
benefits of aquatic sports, so as to invest in Americans' wellbeing. It will also offer 
supervised physical exercises, as well as patient personalization services. 
In addition, the Petitioner submitted! !business plan and a wide range of industry articles and 
reports, such as adult obesity, physical activity guidelines, entrepreneurship, immigrants and the 
economy, immigration, wage and data information, and employment statistics. In response to the 
Director's request for evidence, the Petitioner submitted an updated business plan and "Definitive 
Statement" claiming: 
... [T]o create jobs and a profitable market,I I will hire several qualified U.S. 
professionals. Although I will serve as the company's Chief of Operations, the company 
still needs to fulfill other specialized positions in various departments, including Dietitians 
and Nutritionists, Physical Therapists, Coaches, Scouts, and other necessary positions. 
Over the years, the company will develop and direct a good part of its profits in expanding 
its operations, especially by hiring more American workers, increasing the quality and 
variety of services offered, and participating in courses, training, and workshops to further 
raise the quality of its portfolio. 
In this context, the impact of my proposed endeavor is evident by generating about one 
hundred and eighty-five (185) jobs for U.S. workers across the United States. With an 
expected total payroll expense of $14,061,237 million dollars. I I is ready to boost 
local economies, specifically in the underserved business zones, of several states across 
the United States. This has the potential to attract investments and expand throughout the 
United States in the following years. 
The Director determined the Petitioner demonstrated the proposed endeavor's substantial merit but not 
its national importance. On appeal, the Petitioner maintains the national importance of his proposed 
endeavor of operating I I For the reasons discussed below, we agree with the Director that the 
Petitioner has not sufficiently shown the national importance aspect of his proposed endeavor. 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. As indicated, the 
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Petitioner provided documentation relating to various industries and topics, ranging from the 
importance of entrepreneurism and small businesses to physical education and exercise. In addition, 
the Petitioner contends that his endeavor "is directly linked to U.S. National Initiatives and therefore, 
of National Importance," and he "will work aligned with several national interests and national 
initiatives in the United States, including promoting the health and well-being of all citizens, 
promoting physical activity and healthy lifestyles, and ensuring that students with disabilities have 
access to high-quality physical education programs." Here, the Petitioner must demonstrate the 
national importance of his specific, proposed endeavor of owning and operating I I rather than 
the importance of the national initiatives and interests, industries, or fields. 2 In Dhanasar, we 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. 
In addition, the Petitioner stresses his "twenty-nine (29) years of work experience." However, the 
Petitioner's experience, skills, expertise, and abilities relate to the second prong of the Dhanasar 
framework, which "shifts the focus from the proposed endeavor to the foreign national." Id. at 890. 
The issue here is whether the specific endeavor that he proposes to undertake has national importance 
under Dhanasar's first prong. 
Moreover, to evaluate whether the Petitioner's proposed endeavor satisfies the national importance 
requirement, we look to evidence documenting the "potential prospective impact" of his work. 
Although the business plan claims thatl I"will take an approach to facilitating the benefits of 
aquatic sports to patient's wellbeing in conjunction with supervised physical exercises that is geared 
toward patient personalization," the record does not show through supporting documentation how his 
company stands to sufficiently extend beyond its prospective clients, to impact the industry or the U.S. 
economy more broadly at a level commensurate with national importance. In Dhanasar, we 
determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. 
Finally, the Petitioner did not show his proposed endeavor offers substantial positive economic effects 
for our nation. The business plan does not reflect that his company's future business activities and 
staffing levels stand to provide substantial economic benefits to specific regions or to the United States. 
While the five-year tax generation forecasts $6 million, five-year revenue forecasts $17.7 million, and 
five-year payroll expenses forecasts $14 million, which all include state, regional, and national 
expansion, the business plan does not establish the benefits to the regional or national economy 
resulting from the company's profits and revenues would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. Id. at 890. Similarly, although the Petitioner claims 
the business would create "about one hundred and eighty-five (185) jobs for U.S. workers across the 
United States," the Petitioner did not demonstrate that such future staffing levels would provide 
substantial economic benefits to Florida or the region or U.S. economy more broadly at a level 
commensurate with national importance. The Petitioner, for instance, did not demonstrate that such 
hiring figures would utilize a significant population of workers in the area or would substantially 
2 The Petitioner's evidence and arguments relate more to the substantial merit aspect of the proposed endeavor. 
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impact job creation and economic growth, either regionally or nationally. For all these reasons, the 
record does not establish that, beyond the limited benefits provided to its clients and employees, the 
Petitioner's proposed endeavor has broader implications rising to the level of having national 
importance or that it would offer substantial positive economic effects. 
Because the documentation in the record does not establish the national importance of his 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 his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. 3 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong ofthe Dhanasar analytical framework, we conclude 
that he has not demonstrated eligibility 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. 
3 See INS v. Bagamasbad, 429 U.S. 24. 25 (1976) (stating that ·'courts and agencies are not required to make findings on 
issues in the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 l&N Dec. 516. 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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