dismissed EB-2 NIW Case: Fitness

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 05, 2024 In Re: 31111165 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an exercise trainer and group fitness instructor, seeks classification as a member of the 
professions holding an advanced degree or of exceptional ability. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national interest 
waiver of the job offer requirement that is attached to this EB-2 immigrant classification. See section 
203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 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(joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third in an unpublished decision) in 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). 
The Director of the Texas Service Center denied the petition, concluding the record did not establish 
that 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 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 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. 53 7, 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. Because this classification requires that the 
individual 's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Whilst neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). Dhanasar states that USCIS may as a matter of discretion 
grant a national interest waiver of the job offer, and thus of the labor certification, to a petitioner 
classified in the EB-2 category if they demonstrate that (1) the noncitizen' s proposed endeavor has 
both substantial merit and national importance, (2) the noncitizen is well positioned to advance the 
proposed endeavor, and (3) that on balance it would be beneficial to the United States to waive the 
requirements of a job offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor the 
noncitizen 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. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine whether 
the noncitizen is well positioned to advance the proposed endeavor, we consider factors including but 
not limited to the individual's education, skills, knowledge, and record of success in related or similar 
efforts. A model or plan for future activities, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. Each of the factors considered must, taken together, indicate 
that on balance it would be beneficial to the United States to waive the requirements of a job offer and 
thus of a labor certification. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding 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 of a labor certification, would be in the national interest. 
The Director denied the petition, concluding that whilst the Petitioner was well positioned to advance 
their proposed endeavor, the proposed endeavor was not of national importance such that on balance 
a waiver of the requirement of a job offer and labor certification would be beneficial to the United 
States. We agree with the Director's overall decision that the Petitioner does not qualify for a national 
interest waiver, but we do not agree with and will withdraw the Director's specific finding that the 
Petitioner was well positioned to advance their proposed endeavor. 
A. The Proposed Endeavor 
In 
Part 6 of the initial petition, the Petitioner described their endeavor as a "exercise trainer and group 
fitness instructor" operating a "fitness services and sports consulting company specializing in 
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functional training, body building, and labor gymnastics." Specifically, the Petitioner's proposed 
endeavor, as described in their statements and their business plan, sought to benefit the overall public 
health of the United States by providing in person and virtual fitness services business to business 
(B2B) and business to consumer (B2C). The Petitioner averred that their promotion ofregular exercise 
by and through their functional training, body building, and labor gymnastics services would help 
prevent "depression, anxiety, and attention deficit hyperactivity disorder (ADHD). [Exercise as 
promoted by the Petitioner's proposed endeavor] also relieves stress, improves memory, improves 
sleep quality, and generally improves mood." The Petitioner further stated "everyone who practices 
sports reduces the risk of physical or mental illness and ensures more energy in everyday life." 
Additionally, the Petitioner identified other benefits stemming from their proposed endeavor, namely 
direct and indirect job creation, increasing salary expenditures and concomitant tax collection, 
"knowledge transmission," and social and environmental impact. In support, the Petitioner submitted 
an expert opinion letter authored by lecturer, I I business plan, 
recommendation letters, resume, work experience documentation, and educational documentation. 1 
B. Substantial Merit and National Importance 
Whilst the Director found that the Petitioner's proposed endeavor had substantial merit, they also 
concluded that the Petitioner did not demonstrate that their proposed endeavor was of national 
importance because the Petitioner did not demonstrate the national, or even global, impact of their 
proposed endeavor, any broader implications of the proposed endeavor, or its potential positive 
economic effects. For the below reasons, we agree. 
The evidentiary standard in immigration proceedings is the lowest preponderance of the evidence 
standard, but the burden is on the Petitioner alone to provide material, relevant, and probative evidence 
to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's burden of proof 
comprises both the initial burden of production, as well as the ultimate burden of persuasion. Matter 
of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden of proof from 
Black's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of 
production and the burden of persuasion). First, a petitioner must satisfy the burden of production. As 
the term suggests, this burden requires a filing party to produce evidence in the form of documents, 
testimony, etc. that adheres to the governing statutory, regulatory, and policy provisions sufficient to 
have the issue decided on the merits. The Petitioner's evidence and argument does not help them carry 
their burden of production and persuasion because it is not persuasive relevant, material, or probative 
evidence relating to the national importance of the Petitioner's proposed endeavor under the first prong 
of the Dhanasar framework. 
The relevant inquiry for evaluation of an endeavor's national importance is whether the prospective 
positive impact of the endeavor's national or even global impact, broader implications, or positive 
economic effects apply beyond just narrowly conferring the proposed endeavor's benefit. The 
Petitioner here has not demonstrated how conferring the potential benefit of their proposed endeavor 
to the companies and individuals they intend to solicit have any implication or benefit rising to a level 
beyond them and touching matters of national importance nationally, or even globally, or any 
identified broader implications. The Petitioner cited to various "Budget[s] of the U.S. Government" 
1 While we may not discuss every document submitted, we have reviewed and considered each one. 
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to bolster their contention the proposed endeavor was nationally important. Specifically, the Petitioner 
indicated specific expenditures reserved in the budget for "Advanced Research Project Agency for 
Health (ARP A-H), mental and physical health crisis, and promotion of equity and reduction of 
disparities in health programs. Firstly, it is noted that the Petitioner is referring to the yearly budget 
proposal the White House sends to Congress outlining proposed government spending for the fiscal 
year. It is not indicative of actual appropriations or spending by government agencies. Moreover, it 
is not sufficiently clear in the record how a fitness services and sports consulting endeavor, such as 
the one advanced by the Petitioner, aligns with the proposed expenditures contained in the budget. Or 
in other words the record does not adequately link how the Petitioner's fitness services and sports 
consulting endeavor would support the mental and physical health crisis, promotion of equity and 
reduction of disparities in health programs, and federal research and development in health through 
advanced research projects expenditure proposals the Petitioner highlights. Consequently, we are 
unable to evaluate how the Petitioner's contemplated service relate to the studies the Petitioner cited 
as government initiatives supporting their work. And, even if they did relate, we would still conclude 
they did not implicate matters rising to a level of national importance because any benefit or influence, 
such that it is, would apply mainly only to those businesses and individuals that work directly with the 
Petitioner. This is akin to how the benefit of someone's teaching is generally only directly beneficial 
to the students being taught and not wider population. In Dhanasar we discussed how teaching would 
not impact the field of education broadly in a manner which rises to national importance. Dhanasar 
at 893. By extension activities which only benefit a small subset of individuals and companies, like 
the Petitioner's proposed financial management endeavor, would not rise to a level of national 
importance. And the Petitioner's intention to engage in "knowledge transfer," which is similar to 
teaching, does not elevate their proposed endeavor to a platform of national importance for the same 
reasons. In sum the record supports the conclusion that the potential impact of the endeavor of as a 
"exercise trainer and group fitness instructor" operating a "fitness services and sports consulting 
company specializing in functional training, body building, and labor gymnastics" would benefit only 
the individuals and entities engaging the service. 
Additionally, the record does not demonstrate with material, relevant, and probative evidence how the 
proposed endeavor's benefits broadly implicate matters of national importance. In Dhanasar, we 
noted that "we look for broader implications" of the proposed endeavor and that "[a ]n undertaking 
may have a national importance for example, because it has national or even global implications within 
a particular field." Id. The broader implications of the proposed endeavor, national and/or 
international, can inform us of the proposed endeavor's national importance. That is not to say that the 
implications are viewed solely through a geographical lens. Broader implications can reach beyond a 
particular proposed endeavor's geographical locus and focus. The relevant inquiry is whether the 
broader implications apply beyond just narrowly conferring the proposed endeavor's benefit. The 
Petitioner's business plan identified the proposed endeavor would "empower [ small and medium size 
businesses] to achieve financial efficiency and drive growth through strategic planning and financial 
management." The Director considered these potential benefits when they determined the Petitioner's 
proposed endeavor was of substantial merit. However, as we stated previously, there is insufficient 
evidence in the record to support the impact of the Petitioner's endeavor would permeate beyond the 
immediate sphere of those individuals and entities engaging the Petitioner for their services. In other 
words, the record does not adequately establish the broader implications of the Petitioner's proposed 
endeavor rising to a level of national importance. It is not clear from the record how the "functional 
training, body building, and labor gymnastics" of individuals engaging the services of the Petitioner 
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would implicate matters in public health at a level of national importance. And to the extent that the 
Petitioner asserts that the national importance of their proposed endeavor is apparent upon aggregation 
of the benefits realized by their clients engaging their services, the record as it is presently composed 
does not convincingly reflect the level at which this aggregation would implicate an issue rising to a 
level of national importance. 
We also stated in Dhanasar 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. The Petitioner roots the 
potential positive effects of their fitness services and sports consulting company in their potential for 
job creation and revenue generation. The Petitioner anticipates a hiring spree increasing their head 
count from seven to 17 individuals over five years and increasing their expenditures on salary, but it 
is not clear from the record how this job creation for the proposed endeavor itself would have a 
substantial prospective positive economic effect commensurate with national importance. 
Specifically, the business plan anticipated that the endeavor would employ 1 7 employees paying 
$738,480 in salary. The Petitioner also stated, based on a job multiplier extrapolation, that their 
proposed endeavor would generate 35.29 indirect jobs. The Petitioner asserted that this would 
generate total payroll tax and income tax revenue of $265,235.12 in five years of operation based on 
salary. But the record does not adequately demonstrate the significance of these figures in the context 
of the economy it seeks to influence. Or in other words, it is not readily apparent from the record to 
what degree matters of national importance are implicated broadly by the forecasted economic 
milestones the Petitioner intends to reach through their proposed endeavor. So, even though the 
Petitioner anticipates increasing gross income, a hiring spree increasing their head count, and 
increasing their expenditures on salary, it is not clear from the record as described above how this job 
creation for the proposed endeavor itself would have a substantial prospective positive economic effect 
commensurate with national importance. The Petitioner's aspirations do not demonstrate the national 
importance of the endeavor because they, whether realized or not, would not extend beyond the 
endeavor itself to have an impact on a level of national importance. The record also does not contain 
sufficient probative, material, or relevant evidence showing how the endeavor's hiring plan would 
influence the area's unemployment rate or how the endeavor's operations and revenue rose to a level 
of national importance. 
USCIS may, in its discretion, use as advisory opinion statements from universities, professional 
organization, or other sources submitted in evidence as expert testimony. See Matter of Caron Int'!, 
19 I&N Dec. 791, 795 (Comm'r 1988). However, the submission ofletters from experts supporting 
the petition is not presumptive evidence of eligibility. Id. Moreover, letters from relevant third-party 
reviewers such as prospective investors, retailers, or other industry experts will generally be more 
persuasive to support the merits of an entrepreneur's business, business plan, product, or technology. 
The Petitioner commissioned a letter from by _______ lecturer, I I We 
observe that the letter's content lacks relevance when it comes to the evaluation of whether the 
Petitioner's fitness services and sports consulting company rises to a level of national importance. For 
example, in addressing the national importance of the Petitioner's endeavor, the writer discussed the 
general benefit to the United States of personal training businesses considering the social distancing 
and self-isolation practiced due to the COVID-19 pandemic. However, aside from an overarching 
statement that the Petitioner's endeavor would operate in this field and that the Petitioner had 
experience in the field, the writer does not specifically identify how the provision of services from the 
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Petitioner's proposed endeavor would impact the public health of the United States or pos1t1ve 
economic effect in a manner implicating matters of national importance or what broader implications 
emanate therefrom. Or in other words, the letter overwhelmingly only discusses the importance of the 
Petitioner's field as well as the Petitioner's previous experiences. But this does not relate or 
correspond to the national importance of the Petitioner's proposed endeavor. In sum, the letter does 
not provide any meaningful analysis of the endeavor's broader implications or potential prospective 
economic impact rising to the level of national importance. Consequently, we conclude that the 
Petitioner has not established that their proposed endeavor is of national importance. 
C. Well Positioned to Advance the Proposed Endeavor 
We disagree with the Director and hereby withdraw the Director's conclusion that the record 
established the Petitioner was well positioned to advance the proposed endeavor under the second 
prong of the Dhanasar framework. In evaluating whether a petitioner is well positioned to advance 
their proposed endeavor, we review the following and any other relevant factors: 
• A petitioner's education, skill, knowledge, and record of success in related or similar efforts; 
• 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; 
• Any progress towards achieving the proposed endeavor; and 
• The interest or support garnered by the individual from potential customers, users, investor, or 
other relevant entities or persons. 
It is not clear how an individualized consideration of the multifactorial analysis under Dhanasar 's 
second prong would demonstrate how well positioned the Petitioner is to advance their proposed 
endeavor. The record as currently constituted would still not reflect how the Petitioner's prior 
performance of the duties described in the experience letters is either a similar effort as that of their 
proposed endeavor or how it constitutes a record of success. Whilst the Petitioner submitted a business 
plan describing a plan or model for future activities, the record does not reflect any progress to 
achieving the proposed endeavor other than registering their company. The establishment of their 
company and engagement by clients and customers alone is not strong evidence of progress. Finally, 
the recommendation letters the Petitioner submitted are not material, relevant, or probative evidence 
in the record of interest or support in the endeavor the Petitioner proposed in their petition. As stated 
above, a petitioner's burden of proof comprises both the initial burden of production, as well as the 
ultimate burden of persuasion. Matter of Y-B-, 21 I&N Dec. at 1142 n.3 (BIA 1998); also see the 
definition of burden of proof from Black's Law Dictionary (11th ed. 2019) (reflecting the burden of 
proof includes both the burden of production and the burden of persuasion). So, the evidence in the 
record does not sufficiently describe how well situated the Petitioner would be to advance their 
petition's proposed endeavor. 
III. CONCLUSION 
The Petitioner has not met the 
requisite first and second prong of the Dhanasar analytical framework. 
Because these issues separately and together are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the remaining arguments concerning eligibility under the remaining third 
prong of Dhanasar. 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"); 
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see also Matter ofL-A-C-1, 26 I&N Dec. 216, 526n. 7 (BIA 2015) ( declining to reach alternate issues 
on appeal where an applicant is otherwise eligible). We conclude the Petitioner has not established 
that they are eligible for or otherwise merit a national interest waiver of the job offer requirement, and 
thus of a labor certification. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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