dismissed EB-2 NIW Case: Ergonomics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 19, 2024 In Re: 33402527 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability as well as a national interest waiver of the job 
offer requirement attached to this 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 did not establish eligibility as an individual of exceptional ability or for a 
national interest waiver. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. The 
Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b)(2)(A) of the Act. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F).1 Meeting 
at least three criteria, however, does not, in and of itself, establish eligibility for this classification.2 If 
a petitioner does so, we will then conduct a final merits determination to decide whether the evidence 
in its totality shows that they are recognized as having the requisite degree of expertise and will 
substantially benefit the national economy, cultural or educational interests, or welfare of the United 
States. Section 203(b)(2)(A) of the Act. 
1 If these types of evidence do not readily apply to the individual 's occupation, a petitioner may submit comparable 
evidence to establish their eligibility . 8 C.F.R. § 204.5(k)(3)(iii) . 
2 USCIS has previously confirmed the applicability of this two-part adjudicative approach in the context of individuals of 
exceptional ability. 6 USCIS Policy Manual F.5(B)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
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 
and Immigration Services (USCIS) may, as matter of discretion,3 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. 
Id. 
II. ANALYSIS 
A. EB-2 Visa Classification 
The Director determined that the Petitioner does not qualify as an individual of exceptional ability. 
Since the evidence in the record does not establish by a preponderance of the evidence that the 
Petitioner is eligible for, or otherwise merits, a national interest waiver as a matter of discretion, we 
will reserve the issue of whether she qualifies for EB-2 classification as an individual of exceptional 
ability for future consideration should the need arise.4 
B. Substantial Merit and National Importance 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual proposes to unde1iake and its "potential prospective impact." Id. at 889. The 
endeavor's merit may be demonstrated in a range of areas 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. Id. The term "endeavor" is more 
specific than the general occupation; a petitioner should offer details not only as to what the occupation 
normally involves, but what types of work the person proposes to undertake specifically within that 
occupation. For example, while engineering is an occupation, the explanation of the proposed 
endeavor should describe the specific projects and goals, or the areas of engineering in which the 
person will work, rather than simply listing the duties and responsibilities of an engineer. See 
generally 6 USCIS Policy Manual F.5(D)(1), https://www.uscis.gov/policy-manual. 
We agree with the Director's conclusion that the proposed endeavor has substantial merit as it falls 
within the above-mentioned range of areas of substantial merit, namely health. Therefore, we will 
3 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining 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 is discretionary 
in nature). 
4 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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
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first identify the Petitioner's endeavor as shown in the record and then evaluate the Petitioner's 
evidence in support of the endeavor's national importance. 
The Petitioner asserts that her proposed endeavor is to "direct the operations of an ergonomic and 
physiotherapeutic mattress and therapeutic-related products company in Florida," which will 
contribute to the treatment of people with comorbid conditions, the rehabilitation of war-injured 
soldiers, and reduction of work-related injuries and chronic conditions. She states that her company 
will be established inl IFlorida and "will function as an online store specialized in selling 
mattresses with vibro-massage, anatomical mats with heating and vibro-massage, and vibrating 
pillows with infrared heating." She further states that she will work "by importing products from 
Brazil to the USA and also exporting from the US to other countries. This selling opportunity has the 
potential to influence and impact the American market even in a global level." She maintains that her 
company "will focus on ensuring the bedtime comfort of its customers, by offering the main product, 
which is Physiotherapeutic equipment, mattresses and sleep-related events," with a goal of serving 
"all American citizens and residents experiencing back, spinal, and muscular pain by offering its 
products at affordable prices." She also maintains that her endeavor is "in alignment with the Biden­
Harris Administration Initiative to improve healthcare" and "holds a direct connection to the STEM 
field due to its focus on developing personalized products with innovative mechanisms tailored to 
diverse physiological conditions." The Petitioner's business plan indicates that the company will have 
$1,221,797 in sales proceeds and have 20 employees by its fifth year. 
On appeal, the Petitioner asserts that the Director erred by not considering "the relevance of the field 
of ergonomics as a matter of national relevance to the United States and how [her] endeavor 
contributes to it." She states that '·ergonomic products, such as office furniture and equipment, 
contribute to improved comfort and reduced fatigue among workers. A more comfortable and 
ergonomically designed workspace can enhance productivity and efficiency in various industries, 
ultimately contributing to economic growth." She also contends that her endeavor "not only 
contributes to this aspect of a worker's daily life by being a company in the field, but her expertise in 
aligning industrial/fashion design to ergonomics can contribute to the development of this field, 
increasing American citizen's quality of life through her solutions." 
Here, the Petitioner relies primarily on the importance of the ergonomics field as well as the growth 
of the ergonomic and physiotherapy products market. However, this misapplies the Dhanasar 
framework. 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." Dhanasar, 26 l&N Dec. at 889. In 
Dhanasar, 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. A local physical therapy business 
and a shortage of physical therapists in the United States does not render the proposed endeavor 
nationally important under the Dhanasar framework. 
The Petitioner's business plan provides a generalized description of the company's marketing and 
growth strategy and projected sales; however, there is no explanation of the origins of the estimates or 
of how they were calculated. Broad statements and projections regarding the potential growth of the 
Petitioner's business and substantial positive economic effects that her business will produce, based 
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upon the growth of the ergonomic and physiotherapy products market within the United States, do not 
demonstrate the prospective impact directly attributable to her proposed endeavor or establish how 
her endeavor "has significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." Id. at 890. Further, although the 
Petitioner asserts that her online-based company will hire U.S. employees, she has not provided 
evidence to establish that she would employ a significant population of workers in that area, that the 
area in which the company will operate is economically depressed, or that her endeavor would offer 
the region or its population a substantial economic benefit through employment levels, business 
activity, or tax revenue. 
Further, the Petitioner asserts that her company's customer representatives and sales representatives 
will "contribute to the development of education in the field of physiotherapy and ergonomics, 
considering that, although they do not require specialized academic background in this field, during 
these activities, the employees will be in constant contact with the principals of ergonomics ... 
contribut[ing] to an exchange of knowledge and expertise in this field." However, she has not provided 
sufficient information and evidence to demonstrate the positive impact she may have in the field of 
physiotherapy. Likewise, while she maintains that her endeavor aligns with federal health initiatives, 
including the advancement of STEM fields and occupations, the record does not indicate by a 
preponderance of the evidence that the petitioner would be engaged in activities that would advance 
STEM fields or occupations or impact the field of STEM more broadly. Generalized conclusory 
statements that do not identify a specific impact to the field have little probative value, 5 and here, the 
Petitioner has not shown with sufficient evidence how her work with her prospective customers will 
impact the industry beyond the operations of her business. Without sufficient information or evidence 
regarding any projected U.S. economic impact or job creation directly attributable to her future work, 
the record does not show that benefits to the U.S. regional or national economy resulting from the 
Petitioner's proposed endeavor would reach the level of "substantial positive economic effects" 
contemplated by Dhanasar. Id. In the end, the economic benefits that the Petitioner claims will result 
from her endeavor depend on numerous factors and the Petitioner does not offer a sufficiently direct 
evidentiary tie between her proposed endeavor and the claimed economic results. 
As the Petitioner has not met the requisite first prong 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 basis for denial is dispositive of the Petitioner's appeal, 
we decline to reach and hereby reserve the Petitioner's eligibility and appellate arguments under 
Dhanasar's second and third prongs. 
ORDER: The appeal is dismissed. 
5 See e.g.. 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). 
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