dismissed EB-2 NIW Case: Fitness

U.S. Citizenship 
and Immigration 
Services 
In Re : 24979397 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 3, 2023 
Form I-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a fitness instructor, 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 that the Petitioner qualifies for a 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 Christo 's, Inc., 26 I&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, 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 of progressive experience in the specialty is the equivalent of a master's 
degree. 8 C.F.R. § 204.5(k)(2). 
"Profession" is defined as of the occupations listed in section 10l(a)(32) of the Act, 8 U.S.C. 
§ 1101 (a)(32), 1 as well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into the occupation. 8 C.F.R. § 204.5(k)(3 ). 
1 The listed occupations are architects, engineers, lawyers , physicians, surgeons, and teachers in elementary or secondary 
schools, colleges , academics, or seminaries. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionaty 
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 I&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, 2 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. 
II. ANALYSIS 
The Director determined that the Petitioner qualifies as a member of the professions holding a 
baccalaureate degree and the required five years of progressive post-baccalaureate experience 
equivalent to an advanced degree. The remaining issue to be determined is whether the Petitioner has 
established that a waiver of the requirement of a job offer, and thus a labor certification, would be in 
the national interest. In denying the petition, the Director concluded thatthe Petitioner had established 
the substantial merit of the proposed endeavor, and shown that she is well-positioned to advance it, 
but that the Petitioner had not shown the national importance of the proposed endeavor or that, on 
balance, the United States would benefit from waiving the job offer requirement. 
The Petitioner worked as a fitness teacher and coordinator for various employers in Brazil between 
1998 and 2018, including as a self-employed personal trainer, teaching Pilates, water aerobics, and 
other fitness techniques. She entered the United States in 2018 as an F-1 nonimmigrant student, to 
study English as a second language. 
When she filed the petition in December 2019, the Petitioner stated that she "seeks to contribute to the 
physical well-being of the U.S. public by working as the Fitness and Wellness Coordinator of her 
company" which she established shortly before the filing date. The Petitioner submitted a partial 
printout of the listing for fitness and wellness coordinators on the Department of Labor's O*NET 
website. 3 On part 6 of the petition form and again in a separate letter, the Petitioner listed seven tasks 
of that position, all of them taken essentially verbatim from the tasks listed on O*NET: 
• Teach fitness classes to improve strength, flexibility, cardiovascular conditioning, 
and general fitness of participants; 
2 See also Poursina v. USCIS, 936F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in na ture). 
3 The Petitioner also submitted a printout from the Department of Labor's Occupational Outlook Handbook relating to 
"Fitness Trainers and Instructors." This printout indicates that the "typical entry-level education" for such positions is a 
"high school diploma or equivalent." Tfthe Petitioner intends to work in this occupation, then she does not qualify as a 
memberoftheprofessions. See8 C.F.R. § 204.5(k)(2). If, on the other hand, the Petitioner does not intend to work in this 
occupation, then the background evidence a bout the occupation is not relevant to this proceeding. Because we are 
dismissing this appeal for otherreasons, we need not explore this issue in further detail. 
2 
• Organize and oversee health screenings or other preventive measures, such as 
mammography, blood pressure, or cholesterol screenings or flu vaccinations; 
• Develop fitness or wellness classes, such as yoga, aerobics, strength training, or 
aquatics, ensuring a diversity of class offerings; 
• Select and supervise contractors, such as event hosts or health, fitness, and wellness 
practitioners; 
• Manage or oversee fitness or recreation facilities, ensuring safe and clean facilities 
and equipment; 
• Develop and coordinate fitness wellness programs and services; [and] 
• Maintain wellness and fitness related schedules, records, or reports. 
The Petitioner submitted two documents under the heading "Proposed Employment." The first is a 
certificate from the Florida Department of State, showing that the Petitioner had organized a limited 
liability company. The second comprises printouts from a promotional website for her personal 
training business. Text on the website reads: "As a certified trainer, I off er a wide range of fitness 
services and training styles. Choose from a wide array of existing training options or design your 
own." The website indicates that the Petitioner offers "muscle building," "group fitness" and "private 
training." The submitted printout does not mention "health screenings or other preventive measures, 
such as mammography, blood pressure, or cholesterol screenings or flu vaccinations." 
A. Substantial Merit and National Importance 
The first prong of the Dhanasar framework, substantial merit and national importance, focuses on 1he 
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. In determining whether the proposed endeavor has national importance, we 
consider its potential prospective impact. Matter of Dhanasar, 26 I&N Dec. at 889. 
The Director concluded that the Petitioner had established the substantial merit, but not the national 
importance, of the proposed endeavor. We agree, for the reasons explained below. 
The Director stated that the Petitioner had not shown the national importance of her proposed 
endeavor, because she did not establish that her proposed endeavor will result in "significant job 
creation," "furtherance of human knowledge," "medical advances," or "significant cultural impact." 
On appeal, the Petitioner states that she submitted evidence "to establish that [her] proposed endeavor 
holds potential prospective impact, including national implications in the field of healthcare, 
significant potential to employ U.S. workers, substantial positive economic effects, and enhancement 
of social welfare." The Petitioner's appeal relies heavily on information from her business plan, which 
we will discuss below. 
Because the Petitioner's initial submission provided few details about the proposed endeavor beyond 
the Petitioner's intention to provide fitness instruction, the Director issued a request for evidence 
(RFE), asking for more evidence and information to establish that the proposed endeavor satisfies 1he 
Dhanasar framework. 
3 
In response to the RFE, the Petitioner stated she has established a fitness studio with a "physical space 
where she provides ... a wide range of services including group training, personal training, online 
classes, postural assessments, [P]ilates, [ and] spinning." The Petitioner asserted thatthe online classes 
"bring[] personalize[ d] physical training and treatments to citizens all over the country." 
In her RFE response, the Petitioner noted that USCIS announced "unique considerations for persons 
with advanced degrees in science, technology, engineering, and math (STEM) fields." The Petitioner 
also observed: "According to O*Net OnLine, Athletic Trainers are listed under STEM occupations." 
O*NET lists "Athletic Trainers" under Standard Occupational Classification (SOC) code 29-9091.00. 4 
The Petitioner had previously submitted the O*NETprintoutfor"Fitness and Wellness Coordinators," 
with SOC code 11-9039.02, and claimed job duties within the latter category. The Petitioner did not 
establish that O*NET lists fitness and wellness coordinators under STEM occupations, nor did she 
demonstrate that her intended occupation falls within both SOC codes. The SOC code for "Fitness 
Trainers and Instructors," as mentioned in the Petitioner's initial submission, is 39-9031.00. The 
assignment of three different SOC codes, with three different group prefixes, shows that the 
Department of Labor does not consider the positions to be identical or interchangeable. 5 Because the 
Petitioner has not established that her occupation, as originally described, qualifies as a STEM 
occupation, we need not discuss the "unique considerations" for such occupations. As we will discuss 
further below, in other contexts, the Petitioner seeks to classify her occupation under "Amusement 
and Recreation." 
The Petitioner cited statistics about the impact of physical fitness on obesity, mental health, and other 
areas of concern, which attest to the substantial merit of her proposed endeavor but do not meet the 
Petitioner's burden to establish that her proposed fitness-related endeavor thereby has national 
importance. 
We concluded thatthe petitioner inDhanasar "has not established by a preponderance of the evidence 
that his proposed teaching activities meet the 'national importance' element of the first prong." Id. at 
893. The burden is on the Petitioner to establish that that her instructional work will have an impact 
beyond the customers receiving that instruction. National statistics about health and obesity do not 
establish national importance, unless the Petitioner is also able to establish that her work will affect 
enough people to meaningfully improve those statistics. 
A new business plan, submitted in response to the RFE, asserts that the Petitioner's proposed endeavor 
will have a "national-level impact" because she "has developed a unique skillset pertaining to fitness 
and physical education, physical activity for health conditions, and business management." The 
business plan does not elaborate or explain how the Petitioner's skills are "unique" in her field, such 
that her impact will significantly exceed that of others providing fitness instruction to individuals and 
small groups. 
We note that the proposed endeavor includes online sessions, and therefore the Petitioner could, in 
principle, serve customers anywhere in the United States. But while online sessions expand the 
4 Seehttps://www.onetonline.org/link/summary/29-9091.00. 
5 SOC code prefix 11 relates to "Management Occupations"; prefix 29 relates to "Healthcare Practitioners and Technical 
Occupations"; and prefix 39rela tes to "Personal Care and Service Occupations." Sec "May 2021 Occupation Profiles" at 
https://www.bls.gov/oes/current/oes_stru.htm. 
4 
geographical reach of the Petitioner's activity, they do not necessarily increase the number of 
customers. The Petitioner can only perform a finite number of one-on-one sessions in a given day, 
week, or year, whether the sessions take place in person or virtually. The business plan states that the 
Petitioner's company "provides group training sessions" for groups of "up to five clients," but the plan 
does not directly state the number of planned customers, or show that this number will significantly 
affect health statistics. Even then, those customers could well include individuals who had previously 
trained at other centers. Movement of customers from one facility to the next would have no net effect 
on the cited statistics, and the Petitioner has not shown that it is nationally important for such customers 
to train at her facility rather than those of competitors. 
The new business plan was drafted in late 2021. The Petitioner does not claim or establish that the 
business plan existed in an earlier form when she filed the petition in December 2019. We must 
therefore consider to what extent the business plan adheres to, or deviates from, the proposed endeavor 
as the Petitioner initially described it. 
Material revisions to the proposed endeavor cannot retroactively establish eligibility at the petition's 
filing date. A petitioner must meet all eligibility requirements at the time of filing the petition. 
8 C.F.R. § 103.2(b )(1 ). A petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition conform to USCIS requirements. See Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm 'r 1971) (requiring that beneficiaries seeking employment-based immigrant 
classification must possess the necessary qualifications as of the filing date of the visa petition). 
The business plan indicates that 64.2 million Americans belonged to health clubs in 2019, and that 
there were over 103,000 such establishments in 2021, with thousands more projected to open each 
year. The Petitioner has not demonstrated that her business, in particular, will have national 
importance in such a landscape. This is a key consideration, because the Petitioner must establish the 
national importance of her specific proposed endeavor, rather than the national importance of the 
fitness industry overall. 
We note that the business plan does not indicate that the Petitioner's business will provide 
"mammography, blood pressure, or cholesterol screenings or flu vaccinations," or identify planned 
staff members qualified to provide those services as initially identified. 
The Petitioner had previously indicated that her proposed endeavor will address a shortage of fitness 
instructors. The business plan projects that the company will employ nine trainers by its fifth year of 
operations. The Petitioner did not show that this number would appreciably affect national statistics. 
Also, the business plan indicates that the Petitioner "will make it a priority to hire skilled 
professionals," meaning that she will draw on the existingpool of already-qualified trainers rather than 
add to their number. The business plan indicates that the Petitioner will provide additional training to 
her staff, but she has not demonstrated that her "unique skillset" will have an appreciable impact on 
the industry, or shown how her skills significantly differ, in terms of practical impact, from those 
already found in the U.S. workforce. 
In terms of the planned economic impact of the proposed endeavor, the business plan states: 
5 
In Year 2, the Company will open additional fitness studios in I I and 
_ expanding its target area. In Year 3, [the Company] will establish a franchise 
program. The Company plans to have a total of four franchises in California, Georgia, 
and New York by the end of Year 5. 
The plan proposes "a total of 19 employees, stimulating the U.S. economy both by creating new jobs 
and increasing the amount of payroll [ and income] taxes paid." 
When the Petitioner initially described her proposed endeavor, she did not indicate any plan to open a 
chain of fitness centers or to operate a multistate franchise. As such, these elements of the proposed 
endeavor appear to be material changes that the Petitioner introduced after the fact in an attempt to 
bring the proposed endeavor into conformity with the Dhanasar framework. The plan includes an 
overview of the Petitioner's past career, but this history does not show experience managing a chain 
of fitness centers with additional franchise operations. 6 
In te1ms of job creation, the business plan cites "national job multipliers published by the Econom[ic] 
Policy Institute" (EPI), indicating that "100 direct jobs in the Arts, Entertainment, and Recreation 
Industry generate a total of 3 78 .5 indirect jobs." Citing these figures, the business plan states: "Since 
[the Petitioner] will create 19 direct jobs by the end of Year 5, the total indirect jobs ... would reach 
72." Separately from the EPI figures, the business plan indicates that the Regional Input-Output 
Modeling System (RIMS 11) multipliers for "Other Amusement and Recreation Industries in Florida" 
project "a final-demand impact in employment, equivalent to 414 jobs in Year 5." The Petitioner did 
not submit the multiplier evidence itself or show that her proposed endeavor falls under the categories 
named. The Petitioner did not address or explain the significant discrepancy between the EPI and 
RIMS II figures. 
Many of the Petitioner's arguments rest on general infmmation or assumptions about her field. 
Because there is no blanket waiver for individuals in that field, such asse1iions cannot suffice to meet 
the Petitioner's burden of proof. Individuals in the Petitioner's occupation are presumptively subject 
to the job off er requirement, including labor certification. Arguments based on the aggregate 
importance or economic impact of all workers in an occupation do not, on their face, establish that 
workers in that occupation are entitled to an exception from that statutory requirement. 
The Petitioner submitted two "Expert Opinion Letter[s]" from university faculty members. Both 
letters describe record evidence and conclude that the Petitioner is eligible for the national interest 
waiver. The letters do not introduce new facts into the record; they simply discuss other record 
evidence. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony, but 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought. SeeMatterofCaronlnternational, 19 I&NDec. 791, 795 (Comm'r 1988). USCIS 
may give less weight to questionable opinions. Id. The two submitted letters include several instances 
of identical or very similar language. For example, one letter ends with this assertion: 
6 This apparent lack of experience could have implications for whether the Petitioner is well-positioned to advance the 
proposed endeavor, but we have reserved that issue because the appeal will be dismissed on other grounds. 
6 
[The Petitioner] possesses considerable experience and expertise in this highly 
specialized field. The evidence also shows that her proposed endeavor has significant 
national and even global impact and also a matter of national concern, stimulates 
economic growth and positively influences individual and societal wellbeing. As [the 
Petitioner's] proposed endeavor is in an area that furthers US interests and [the 
Petitioner] offers contributions of such value through her proposed endeavor, on 
balance it would benefit United States [sic] to have her, even assuming that other 
qualified US workers are available. 
The other letter concludes with a very similar passage: 
[The Petitioner] possesses considerable experience and expertise in a highly specialized 
field. The evidence also shows that her proposed endeavor has significant national 
impact, stimulates economic growth, and positively influences individual and societal 
well-being through job creation. As [the Petitioner's] proposed endeavor is in an area 
that fmihers US interests and [the Petitioner] offers contributions of such value, it 
would benefit United States [sic] to have her, even assuming that other qualified US 
workers are available. 
Identical language in letters "suggests that the letters were all prepared by the same person and calls 
into question the persuasive value of the letters' content." Hamal v. US Dep't ojHomeland Security, 
No. 19-2534, slip op. at 8, n.3 (D.D.C. June 8, 2021). 
The Petitioner also submitted letters from customers who explained why they preferred the Petitioner 
to other fitness trainers. Their satisfaction shows that the Petitioner's work has been effective for 
individual clients, but does not extrapolate into national importance. 
We agree with the Director's conclusion that the Petitioner has not met her burden to establish the 
national importance of her proposed endeavor. Her appellate brief essentially repeats previous claims 
and does not establish error in the Director's decision. 
Because the Petitioner has not met the required "national importance" element of the first prong of the 
Dhanasar analytical framework, we conclude as a matter of discretion that she has not established 
eligibility for a national interest waiver. Because this issue determines the outcome of the Petitioner's 
appeal, we reserve the appellate arguments regarding the remaining issue of the third Dhanasarprong 
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 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. 
7